160 Definitions (More Than Minimal Planning, Etc.) (§1B1.1)

150 – Application Principles, Generally

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§160 Definitions (More Than Minimal Planning, Etc.)

(U.S.S.G. §1B1.1)

10th Circuit says hammer is dangerous weapon, even if not used as a weapon. (160)(224) Defendant used a hammer to gain entry during a burglary. At sentencing, the court added two levels under § 2B2.1(b)(4) for possession of a dangerous weapon. The Tenth Circuit affirmed, agreeing that a hammer is a dangerous weapon, even if it is not used as a weapon during the offense. U.S. v. Martinez, __ F.3d __ (10th Cir. June 14, 2021) No. 20-2126.

8th Circuit says gunshot in the leg was serious bodily injury. (160)(224) Defendant was convicted of interfering with commerce by threats. At sentencing, the district court added four levels under § 2B3.2(b)(4)(B) because an accomplice fired a gun and shot a man in the leg in an effort to have the man give up a domain name. The Eighth Circuit found that the gunshot caused serious bodily injury because the wound required medical intervention. U.S. v. Adams, __ F.3d __ (8th Cir. Apr. 30, 2021) No. 19-3761.

6th Circuit says pistol-whipping inflicted “bodily injury” on the victim (160)(224) Defendants were convicted of carjacking, in violation of 18 U.S.C. § 2119. Trial evidence showed that one of the defendants pistol-whipped the victim, causing him to lose consciousness momentarily and leaving a knot on his head. The victim did not seek medical attention for his injuries. At sentencing, the district court enhanced defendant’s offense level by two under § 2B3.1(b)(3)(A) because defendant had caused the victim “bodily injury.” The Sixth Circuit found that the victim’s failure to seek medical attention did not mean that he had not suffered “bodily injury” and upheld the district court’s finding. U.S. v. Jackson, __ F.3d __ (6th Cir. Mar. 12, 2019) No. 17-3896.

5th Circuit finds caltrop road spikes are dangerous weapons. (160)(340) Defendant pled guilty to transporting undocumented aliens for purposes of financial gain. During the offense, while Border Patrol agents were pursuing defendant’s truck, someone threw out a bucket containing caltrops, which are metal spikes that traffickers often deploy during pursuits to puncture the tires of police cars. The caltrops disabled two law enforcement vehicles by puncturing their tires, but neither the agents nor other motorists were injured. The Fifth Circuit upheld a four-level increase under §2L1.1(b)(5)(B) for use of a dangerous weapon, i.e., the caltrops. The fact that defendant might have been using the caltrops “defensively,” and that no one was hurt, did not matter. The definition of dangerous weapon does not require that use of the instrument actually inflict death or serious bodily injury; it only needs to be capable of inflicting such death or serious bodily injury. Common sense suggests that causing a blow-out at high speeds could easily lead to death or serious bodily injury. U.S. v. Olarte-Rojas, __ F.3d __ (5th Cir. Apr. 29, 2016) No. 14-41408.

10th Circuit upholds “dangerous weapon” increase for using Taser during struggle with officer. (160) (210) While struggling with a police officer who was trying to subdue him, defendant took control of the officer’s Taser and drive-stunned the officer’s leg. Defendant pled guilty to forcibly assaulting the officer, and received a four-level enhancement under §2A2.2(b)(2)(B) for using a dangerous weapon during the assault. The Tenth Circuit affirmed. A Taser, even in drive-stun mode, qualified as a dangerous weapon. In either drive-stun or probe mode, a Taser is “capable of inflicting … serious bodily injury” as defined in §1B1.1. The burn marks on the police officer’s thigh showed that a Taser in drive-stun mode was capable of causing serious bodily injury if applied to a sensitive spot. Moreover, by taking control of the Taser and applying it against the officer, defendant “used” the Taser. His use exceeded mere “brandishing, displaying, or possessing a … dangerous weapon.” See §§1B1.1, Note 1(I), 2A2.2(b)(2)(C). U.S. v. Quiver, __ F.3d __ (10th Cir. Nov. 17, 2015) No. 14-8077.

8th Circuit considers acquitted murder to support permanent bodily injury enhancement. (160)(224) Defendant and two associates were charged with robbing and murdering two victims. Defendant was acquitted of the murder but convicted of robbery. The Eighth Circuit upheld the court’s consideration of the acquitted murder in applying a six-level increase under §2B3.1(b)(3)(C) for infliction of permanent bodily injury. A sentencing court may consider conduct underlying an acquitted charge, so long as the conduct has been proved by a preponderance of the evidence. Defendant could have foreseen that the robbery would result in “permanent or life threatening bodily injury.” The court found that “[e]veryone knew, if not a murder, [there] would be violence in [the victims’] home and there would be injury in that home to one or both parties.” At trial defendant testified that the victim was “very angry,” “liked to scream and yell,” and that he and the victim had “gotten into it a couple of times” in the past. Defendant also knew that the victim had attacked his girlfriend just a few hours before the robbery. Moreover, defendant had informed his associates while they were planning revenge that he knew the victim owned a gun and where he stored his cocaine. U.S. v. Martin, __ F.3d __ (8th Cir. Feb. 4, 2015) No. 13-2410.

1st Circuit holds that bank president’s fraud involved more than minimal planning. (160) Defendant, the president of a bank, was convicted of various fraud counts in connection with his use of bank funds to pay off a personal debt. Section 2F1.1(b)(1)(A) of the 1998 guidelines, which were in effect when he committed his offense, contained a four-level enhancement if the offense involved more than minimal planning. There is no provision in the 2001 guidelines for a more than minimal planning increase, and the district court found that defendant’s adjusted offense level under the 2001 guidelines was 12. Defendant argued that his offense did not involve more than minimal planning, his adjusted offense level under the 1998 guidelines would only have been 10, and therefore, the application of the 2001 guidelines violated the ex post facto clause. The First Circuit found that defendant’s offense involved more than minimal planning under the 1998 guidelines, and therefore the application of the 2001 guidelines did not violate the ex post facto clause. Defendant’s actions exceeded the amount of planning typical for a commission of bank fraud in a simple form. First, defendant established a working relationship with multiple members of a family involved in the fraud. These prior dealings provided a model for the fraudulent transaction involved in the offense of conviction. The transaction itself required considerable paperwork and involved the unwitting participation of an outside party, the bank officer who prepared the false documents at the direction of defendant. U.S. v. Colon-Munoz, 318 F.3d 348 (1st Cir. 2003).

1st Circuit affirms more than minimal planning increase for repeated acts over seven months. (160) Defendant was a dairy farmer. On at least five occasions over a seven-month period, defendant, together with delivery truck drivers, participated in a scheme to add water and salt to the milk produced at his farm. The water was added to increase the amount of milk sold and salt was added to mask the addition of water and avoid detection of the adulterated milk at the processing plant. The district court found that defendant had engaged in more than minimal planning under § 2F1.1(b)(2)(a) based on his affirmative steps to conceal the offense. The sole purpose of adding the salt was to conceal the milk adulteration. Moreover, defendant’s repeated acts, occurring over a period of seven months, could not be characterized as “purely opportune.” Defendant had the salt ready and had prefilled the milk vats with water in preparation for the adulteration. The First Circuit found no clear error in the enhancement. U.S. v. Lopez-Lopez, 295 F.3d 165 (1st Cir. 2002).

1st Circuit holds that check-kiting scheme involved more than minimal planning. (160) Defendant lived with his employer. After a dispute over medical bills, defendant became angry and left his employment and his employer’s home, taking with him the company’s business checkbook. Defendant then engaged in a check-kiting scheme using the stolen checks. He wrote several checks to himself for varying amounts, and during a two-day period and at four different branches, he either cashed the checks and/or made withdrawals from the amounts previously deposited into his account. During a two-day period, defendant defrauded the bank of $11,405 before it discovered the scheme. Defendant challenged a more than minimal planning increase under § 2F1.1(b)(2), contending that his actions were impulsive and opportunistic. The First Circuit found the increase appropriate, since defendant’s repeated transactions at different bank branches were not “purely opportune.” “Although [defendant] obviously took advantage of having recently obtained his employer’s checks, and it may seem unlikely that it occurred to him to engage in this scheme at any time prior to his taking the checks and leaving, it nonetheless took two days for him to complete the process of deposits and withdrawals that were the basis of his bank fraud charge.” U.S. v. Chapman, 241 F.3d 57 (1st Cir. 2001).

1st Circuit rules filing false forwarding notice involved more than minimal planning. (160) Over a period of time, defendant “stalked” his ex-girlfriend, who had resumed a relationship with a previous boyfriend. Defendant discovered a post office box that the two shared, and submitted a forged change-of-address card, diverting mail from the box to defendant’s own residence. About ten days later he attempted to cancel the order, but was unsuccessful, since he had denoted the address change as permanent. Defendant was convicted of filing a false statement with the U.S. postal service. He argued that the act of filing the false change-of-address card did not involve more than minimal planning. The First Circuit ruled that the offense did involve more than minimal planning, when viewed in light of the entire scheme. Defendant first had to determine where the ex-boyfriend lived, determine that his mail was not being delivered to his residence, find where the post office box was, and then fill out the fraudulent forward notice. After defendant found the information he wanted, he attempted to cancel the forwarding notice, to avoid detection. Thus, defendant’s case involved an extended course of conduct, and he took affirmative steps to cover up his crime. U.S. v. Duclos, 214 F.3d 27 (1st Cir. 2000).

1st Circuit holds that attempts to obtain advances on letter of credit involved more than minimal planning. (160) Defendant presented fraudulent documentation to a bank so that his company could draw on a $109,411 letter of credit set up for the company by a customer. The letter of credit was only to be drawn upon after defendant’s company had shipped certain products to the customer. Defendant challenged a more than minimal planning enhancement, claiming that the letter of credit inadequately described the products to be shipped and that his repeated deceptive acts were merely opportunistic. The First Circuit affirmed the more than minimal planning increase. Defendant’s deceitful actions began with his misuse of a $75,000 advance from the same customer given months earlier. He involved other company employees in creating the fraudulent documents, and made repeated efforts to fraudulently induce the bank to issue the monies authorized by the letter of credit. Defendant’s actions were not merely opportunistic or “spur of the moment.” U.S. v. Agne, 214 F.3d 47 (1st Cir. 2000).

1st Circuit says abduction does not require physical force. (160) Electronic surveillance at defendant’s principal place of business proved that he and three others severely beat Goulet. Defendant was recorded telling an acquaintance that defendant had physically abducted Goulet, took him behind the Gaslight Lounge, and beat him up. However, the tape also contained statements by defendant suggesting that he tricked Goulet into following him to the Gaslight. Defendant challenged an abduction enhancement under § 2E2.1(b)(3)(A), arguing that he did not use any physical force to bring Goulet to the Gaslamp. Note 1(a) to § 1B1.1 says “abducted” means a victim was forced to accompany an offender to a different location. The First Circuit refused to hold that an “abduction” requires physical force. The dictionary defines force as compelling “by physical, moral, or intellectual means” or “to impose” or “win one’s way.” An abduction accomplished by use of threat and fear carries the same dangerous consequences as an abduction accomplished by use of physical force. In the present case, there was sufficient evidence that defendant abducted Goulet either by physical force or trickery to warrant the enhancement. U.S. v. Cunningham, 201 F.3d 20 (1st Cir. 2000).

1st Circuit rejects more than minimal planning for depositing bad checks in own bank account. (160) Defendant was approached by a stranger who offered him an unspecified amount of money to cash some checks. When defendant agreed, the stranger gave him six checks, and then asked defendant if he knew anyone else who would cash checks. Defendant agreed. He deposited two of the checks in his own bank account, gave two to someone he knew as “Samman,” and gave two to someone he did not know. The day after he deposited the checks, he withdrew $5,000 from that account, collected money from the other two individuals, and gave the total sum to the stranger, who then paid defendant $500. The First Circuit rejected a § 2F1.1(b)(2) enhancement for more than minimal planning. The crime was simple and short-lived. The fact that defendant went to the bank twice to complete the simple act of depositing checks and withdrawing funds was not a complication of the basic crime. Although defendant recruited two others to negotiate four of the six counterfeit checks, he did so at the stranger’s request. Defendant complied with the request as part of the same criminal act during the same short period. U.S. v. Phath, 144 F.3d 146 (1st Cir. 1998).

1st Circuit holds stationing man at door to prevent escape was physical restraint. (160) Defendant was convicted of conspiring to use extortionate means to collect extensions of credit and related charges. In one instance, two underlings met with a victim who owed the organization money. During the meeting, one of the underlings gave the victim a sudden, violent blow to the head. Throughout the encounter, the other man remained by the door to prevent anyone from entering or leaving. The First Circuit upheld an enhancement under § 2E2.1(b)(3)(B) for physical restraint of the victim. Contrary to defendant’s claims, extortion does not invariably involve physical restraint. The assault here involved physical restraint, even though the victim was never tied, bound or locked up. The examples listed in note 1(i) to § 1B1.1 are illustrative rather than exhaustive. One man pushed the victim as he attempted to leave the hallway in which he was being assaulted, and the other man, throughout the encounter, stood at the hallway door barring egress by the victim. These physical restrictions on defendant’s freedom of movement constituted “physical restraint.” U.S. v. DeLuca, 137 F.3d 24 (1st Cir. 1998).

1st Circuit approves pilot increase where defendant steered boat on master’s instructions. (160) Defendant was one of five crewmembers aboard a boat that was intercepted by the Coast Guard attempting to smuggle marijuana from Colombia. The district court enhanced his sentence under § 2D1.1(b)(2)(B) for acting as a “pilot.” Defendant asserted that the enhancement only applies to participants in a position of authority or command, and that he did not possess special navigational rank or skills, but merely steered the vessel on the instructions of the master of the boat. The First Circuit affirmed the enhancement. The dictionary definition of pilot includes a person hired to steer a vessel. Although the act of steering a 40-foot vessel on the high seas might or might not involve a skill obtained through extensive maritime training, the enhancement was not clear error. The enhancement is not limited to those with special command in a criminal enterprise. It only requires control over some mechanical aspect of the vessel’s operation. U.S. v. Guerrero, 114 F.3d 332 (1st Cir. 1997).

1st Circuit holds that student loan fraud involved more than minimal planning. (160) Defendant worked for a distributorship that recruited students for a correspondence school. The school and the distributorship committed numerous frauds involving student financial aid programs. The First Circuit affirmed a more than minimal planning enhancement because the complex scheme and defendant’s conduct were not purely opportune. Defendant engaged in several repeated fraudulent acts in furtherance of the conspiracy. He recruited students for the program, falsified information on school applications and federal student loan applications, and was responsible for obtaining student signatures endorsing student loan checks. U.S. v. Royal, 100 F.3d 1019 (1st Cir. 1996).

1st Circuit holds gunshot wound to upper arm was serious bodily injury. (160) Defendant made a racially motivated assault on several men. The First Circuit agreed that a gunshot wound to the upper arm of one of the victims was a serious bodily injury under § 2A2.2(b) (3)(B) and note 1(j) to § 1B1.1. The injury took the victim to the hospital for 90 minutes, and left him work‑disabled for three weeks. This constituted the impairment of a function of a bodily member. To impair generally means to diminish or decrease. There is no requirement of duration. U.S. v. Page, 84 F.3d 38 (1st Cir. 1996).

1st Circuit says rape did not cause “serious bodily injury” under carjacking statute. (160) Defendant was convicted of carjacking in violation of 18 U.S.C. § 2119. The district court sentenced defendant under subsection (2) of § 2119, which increases the maximum term of imprisonment from 15 to 25 years “if serious bodily injury” as defined in § 1365 resulted. Serious bodily injury is bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily members, organ or mental facility. The district court applied the enhancement based on a determination that the rape caused the victim extreme physical pain. The First Circuit reversed, finding no record evidence that the victim suffered either extreme physical pain or any of the other listed injuries. A medical report filed after the attack stated that there were no cuts or bruises in the victim’s vaginal area. The government was unable to cite a case in which § 2119(2) was applied based on extreme physical pain without some evidence of actual pain. Although a rape that causes no physical pain is still a reprehensible physical and psychic invasion, the statute, by its terms, limits its application to specific types of injury. U.S. v. Rivera, 83 F.3d 542 (1st Cir. 1996) No. 95‑2186.

1st Circuit finds more than minimal planning in repeated acts over several months. (160) Defendant was involved in a scheme to transport tobacco from a Native American reservation in upstate New York into Canada without paying the taxes and excise duties levied by Canadian laws. The First Circuit agreed that the scheme involved more than minimal planning because it involved multiple acts over a several month period. For example, the conspirators bribed the police chief. U.S. v. Boots, 80 F.3d 580 (1st Cir. 1996), overruling on other grounds recognized by U.S. v. Richardson, 421 F.3d 17 (1st Cir. 2005).

1st Circuit says seven false book entries involved more than minimal planning. (160) Defendant and other officers of an insurance company defrauded the company by running a false claim scheme. Defendant, as vice president for claims, reopened previously closed files so fictitious claims could be made against those accounts. Another co-defendant assigned cash reserves for those accounts. Finally, another co-defendant who was an attorney submitted fictitious claims on behalf of non-existent clients, which were paid by the company and charged against the reserves assigned to the reopened accounts. The First Circuit agreed that the scheme, which required defendant to make at least seven false book entries, involved more than minimal planning. U.S. v. Santiago-Gonzalez, 66 F.3d 3 (1st Cir. 1995).

1st Circuit upholds more than minimal planning enhancements for bank fraud scheme. (160) Defendants were involved in a scheme to obtain bank loans by fraudulently representing the existence of down payments. In light of the complex and sophisticated scheme, the 1st Circuit found defendants’ challenges to the more than minimal planning enhancements under § 2F1.1(b)(2)(A) to be “far-fetched.” The scheme involved more planning than was typical for commission of the offense in its simple form, and involved repeated acts by defendants. U.S. v. Brandon, 17 F.3d 409 (1st Cir. 1994).

1st Circuit rules pre-offense planning of concealment not necessary for more than minimal planning enhancement. (160) Defendant deposited a stolen tax refund check containing forged signatures into his own bank account. When confronted by investigators, defendant claimed he received the check from a Hispanic man as partial payment for a car. A friend corroborated this story. The 1st Circuit upheld an enhancement for more than minimal planning under section 2F1.1(b)(2)(A), rejecting the need for direct evidence of pre-offense planning of the concealment of the offense. Although a defendant’s subsequent cover-up activity may be so disassociated from the earlier crime as to make the more than minimal planning enhancement unreasonable, such a determination is one of fact for the district court. Here, defendant put his name and address on the stolen check, and thus knew he would later be questioned by authorities. The false story he told, and the elaborate steps he took to support it, were integral to the original offense. The offense could properly be said to have involved the later cover-up activity. Judge Bownes dissented. U.S. v. Beauchamp, 986 F.2d 1 (1st Cir. 1993).

1st Circuit affirms that assault involved serious bodily injury. (160) The 1st Circuit affirmed that defendant’s assault caused the victim serious bodily injury. Section 1B1.1(j) defines “serious bodily injury” as “injury involving extreme physical pain or the impairment of a function of a bodily member, organ or mental faculty; or requiring medical intervention such as surgery, hospitalization or physical rehabilitation.” The sentencing court supportably found that the victim sustained injury to his inner ear. Upon entering the hospital, the victim complained of dizziness and tinnitus. While tests were not revealing, the examining neurosurgeon testified that it was not unusual for inner ear damage to be evidenced solely by the patient’s subjective complaints. Moreover, the victim was hospitalized for six days as a result of the beating administered to his head, which caused severe headaches, facial bruising and hemorrhaging around the eyes and under the scalp. U.S. v. Newman, 982 F.2d 665 (1st Cir. 1992).

1st Circuit says plan to sell forged instruments involved more than minimal planning. (160) Defendant was arrested in possession of forged cashier’s checks and demand drafts with a total face value of more than $18 million. Defendant testified that he hoped to get 80 percent of the face amount of the checks, but that he might accept as little as 40 percent of face value. The 1st Circuit affirmed an enhancement for more than minimal planning, since the offense “obviously involved a complex plan.” U.S. v. Resurreccion, 978 F.2d 759 (1st Cir. 1992).

1st Circuit holds that 23 forged travel expense vouchers involved more than minimal planning. (160) Over a period of four years, defendant defrauded the Commonwealth of Massachusetts by falsifying his travel expense vouchers and altering the underlying support documents. The 1st Circuit reversed the district court’s determination that the mail fraud offense did not involve more than minimal planning under section 2F1.1(b)(2). Defendant’s fraudulent scheme involved repeated acts over a four-year period, and could not be characterized as purely opportune. Conduct is purely opportune only if it is spur of the moment conduct, intended to take advantage of a sudden opportunity. The intricate detail involved with some of the alterations, as well as the necessity that defendant undertake several steps in order to secure payment for the fraudulent vouchers, belied his claim that the alterations were done on the spur of the moment. U.S. v. Rust, 976 F.2d 55 (1st Cir. 1992).

1st Circuit affirms that 11 fraudulent loan applications involved more than minimal planning. (160) Defendant, a real estate broker, pled guilty to 11 counts of filing false residential mortgage loan documents. The 1st Circuit affirmed that defendant’s conduct involved more than minimal planning. Application note 1(f) to guideline section 1B1.1 provides that more than minimal planning is present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. The court rejected defendant’s claim that his repeated preparation and submission of false statements constituted “spur of the moment” conduct. Each of the 11 loan transactions involved several steps: arranging for the mortgage financing, concealing the second mortgage financing in the first mortgage loan documents, and submitting the loan documents to the bank. U.S. v. Gregorio, 956 F.2d 341 (1st Cir. 1992).

1st Circuit holds that obtaining fraudulent loans from a bank involves more than minimal planning. (160) The 1st Circuit held that it was proper to find that it took more than minimal planning to fraudulently obtain loans from a bank where defendant worked, thus leading to an enhancement of her offense level. It could not conceive of anyone obtaining even one fraudulent loan without more than minimal planning since a chain of false information must be provided. The court stated that the definition of ‘more than minimal planning,’ as set forth in § 1B1.1 Application Note 1(F) was clearly met in this case. The district court’s finding on this issue was not clearly erroneous. U.S. v. Fox, 889 F.2d 357 (1st Cir. 1989).

2nd Circuit upholds bodily injury increase where assault victims were treated for abrasions and bruises. (160) Defendant was convicted of Hobbs Act violations for participating in a violent attack on members of a rival labor union. He challenged a § 2B3.2(b)(4)(A) enhancement, which applies if any victim sustained bodily injury. A “bodily injury” is any significant injury, i.e. an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought.” The Second Circuit affirmed the enhancement. The four victims were treated at the hospital for injuries such as abrasions, bruises, pain while breathing, and bruised ribs. One victim testified that he “was hurting pretty bad,” and another victim took off two days of work after he was treated. U.S. v. Markle, 628 F.3d 58 (2d Cir. 2010).

2nd Circuit says dangerous weapon need not be used as weapon to justify enhancement. (160) Defendant pled guilty to bank burglary, and his sentence was increased for possessing a dangerous weapon under § 2B2.1(b)(4) based on the sledgehammer he used to break a side window of the bank. Defendant argued that this was inappropriate because the sledgehammer was not used or possessed as a weapon, but instead to facilitate the burglary. The Second Circuit held that § 2B2.1(b)(4) only requires possession of a dangerous weapon, regardless of whether the weapon was employed as a weapon during the commission of a crime. Application Note 1(D) to § 1B1.1 states that a dangerous weapon is “an instrument capable of inflicting death or serious bodily injury,” and a sledgehammer is capable of causing such harm. Accordingly, a sledgehammer is a “dangerous weapon” under § 2B2.1(b)(4). Defendant possessed the weapon during the burglary; the fact that he did not use the sledgehammer as a weapon was irrelevant to the issue of possession. U.S. v. Pope, 554 F.3d 240 (2d Cir. 2009).

2nd Circuit reverses permanent injury finding. (160) Over a several-year period, defendant engaged in a campaign of extortion designed to generate business for his gift shop. The district court imposed a six-level increase under § 2B3.2 (b)(4), concluding that one of the extortion victims had sustained permanent injury to his eyes after he was assaulted by gang members. The victim testified that during the assault, a watery substance went into his eyes that hurt tremendously, and that he could not open his eyes and could not see. His eyes felt better after he washed them out with water. However, the assault had affected his eyesight, and it was now difficult for him to spend time reading the newspaper. The Second Circuit held that the district court erred in finding that the victim had sustained a permanent injury that would trigger a six-level enhancement. Where a substantial impairment is not obvious, something more than the generalized and subjective impression of the victim is required. U.S. v. Guang, 511 F.3d 110 (2d Cir. 2007).

2nd Circuit says bodily injury increase is based on results of crime, not circumstances of its commission. (160) Defendant was involved in a scheme to murder the sister of a government informant. She was shot twice at point blank range through the window of her car. However, the gun malfunctioned, and she received only minor injuries, as one bullet ricocheted off her back and the other lodged in her neck behind her ear. The district court applied a four-level increase under § 2A2.1(b)(1) for “permanent or life-threatening bodily injury” based on the permanent nature of the victim’s emotional injury (Post-Traumatic Stress Disorder) and the life-threatening circumstances to which she was subjected, emphasizing the sheer good fortune that prevented her death. The Second Circuit remanded for resentencing, agreeing with defendant that the enhancement applies to the results of a crime, rather than the circumstances of its commission. The resulting injuries to the victim are the sole determinant of whether a bodily injury enhancement is justified. The panel further held that emotional injury can constitute “permanent or life-threatening bodily injury” when such emotional injury causes the “loss or substantial impairment of the function of a … mental faculty.” However, the court’s findings were insufficient on this point, and the court remanded for further inquiry into the victim’s psychological and emotional injuries. U.S. v. Spinelli, 352 F.3d 48 (2d Cir. 2003).

2nd Circuit rules misleading checks and false statements supported more than minimal planning increase. (160) Defendant fraudulently transferred money from an account belonging to Durr to another account belonging to Durr where he had investment authority. He then invested the money and lost most of it. He challenged a more than minimal planning enhancement because he “did not open or establish new accounts,” because his crime was “stupid,” and because an enhancement based on his multiple wire frauds constituted double counting. The Second Circuit found no error. On three separate occasions after he had moved the money, he tendered checks to Durr from a fictional entity. Defendant also failed to respond to request from Durr and her associates for statements on her account. The misleading checks and false statements formed a “pattern of false statements” that, standing alone, warranted application of a § 2F1.1(b)(2) increase, independent of the multiple wire frauds. U.S. v. Coriaty, 300 F.3d 244 (2d Cir. 2002).

2nd Circuit finds more than minimal planning in bank fraud case. (160) The Second Circuit found it unnecessary to decide whether defendant’s sentence was improperly increased based on multiple victims, because the two-level increase was also based on the district court’s finding that defendant’s scheme involved more than minimal planning. The court found that the scheme “involved a great deal of planning because he requisitioned, obtained, forged, and cashed seventeen separate checks.” Because § 2F1.1(b)(2) calls for the enhancement on either ground, there was no error. U.S. v. Crisci, 273 F.3d 235 (2d Cir. 2001).

2nd Circuit says six-year embezzlement scheme involved more than minimal planning. (160) Over a six-year period, defendant embezzled $714,000 from his employer. Defendant submitted false invoices and check requests to the company’s accounting department. When he received the checks, he forged the payee endorsement, endorsed the check to either himself or his wife, and deposited the funds in a personal account he shared with his wife. Using this method, defendant acquired about 100 false checks. The Second Circuit held that the fraud scheme involved more than minimal planning because defendant repeatedly created false invoices over a six-year period. Even if defendant’s crime was not complex, he took “detailed and deliberate action” in committing the offense. U.S. v. Barrett, 178 F.3d 643 (2d Cir. 1999).

2nd Circuit holds that displaying gun and telling people to get down is not “physical restraint.” (160) Defendant and an accomplice entered a bank, brandished a gun, told the tellers to get down on the floor and not move, and the tellers did so. The district court applied a § 2B3.1(b)(4)(B) enhancement on the ground that the teller-victims were “physically restrained.” Note 1(i) to § 1B1.1 defines “physically restrained” as “the forcible restraint of the victim such as by being tied, bound, or locked up.” The Second Circuit held that the physical restraint enhancement did not apply to these facts. Displaying a gun and telling people to get down and not move, without more, is insufficient to trigger the physical restraint enhancement. Such conduct is materially different from the guidelines examples, each of which involves a restraint of movement using some artifact by which the victim is tied or bound. Under the government’s interpretation, virtually every robbery would be subject to the physical restraint enhancement unless it took place in unoccupied premises. U.S. v. Anglin, 169 F.3d 154 (2d Cir. 1999).

2nd Circuit says fake lease supporting false loan application showed more than minimal planning. (160) Defendant, a real estate attorney, applied for several bank loans between 1988 and 1990, both to fund real estate projects he was developing and to obtain a home mortgage. He was convicted of making false statements to the bank in connection with the mortgage loan application, including misrepresenting that the source of his down payment was savings, omitting several outstanding loans or lines of credit, misrepresenting his income, and misrepresenting that the house he was vacating had been rented to an associate’s company. He even submitted to the bank a sham lease that he claimed constituted the rental agreement for the house. The Second Circuit agreed that the offense involved more than minimal planning, based on the series of prior false statements on loan applications leading up to the offense of conviction. The fact that the jury acquitted defendant of these charges did not preclude the court from considering the same conduct for guidelines purposes. In addition, he created and submitted to the bank a false lease to support the false statements he made in the instant offense. U.S. v. Walsh, 119 F.3d 115 (2d Cir. 1997).

2nd Circuit holds that antique pistol is firearm. (160) Defendant used an antique revolver to rob a bank. The district court applied a § 2B3.1(b)(2)(C) enhancement for using a “firearm” during the offense. Defendant argued that the antique was only a dangerous weapon, rather than a firearm, since the Gun Control Act excepted antiques from its definition of firearms. The Second Circuit held that an antique revolver was a firearm under the guidelines, despite the exception for antiques in the Gun Control Act. The gun clearly fell within the guidelines’ definition of firearm in § 1B1.1, note 1(e), since it uses gunpowder to propel a bullet. The definition makes no reference to the Gun Control Act or to any exception for antique weapons. The policy motivating the Act’s exception for antiques—allowing gun collectors to pursue their hobby—had no relevance in the context of determining the proper sentence for an armed robber. U.S. v. Kirvan, 86 F.3d 309 (2d Cir. 1996).

2nd Circuit holds that arson/insurance fraud scheme involved more than minimal planning. (160) Defendant destroyed a building he owned in an attempt to collect insurance proceeds. The Second Circuit upheld a more than minimal planning enhancement. The acts of defendant’s co-conspirators in planning and committing the arson constituted more than minimal planning, and defendant could foresee that such planning would occur to destroy such a sizable property. Furthermore, defendant himself was involved in more than minimal planning as to the arson. Defendant insured the property at replacement cost, hired and paid accomplices, decided the timing of the fire, and submitted the $14 million insurance claim. U.S. v. Mizrachi, 48 F.3d 651 (2d Cir. 1995).

2nd Circuit finds warehouse theft did not involve more than minimal planning. (160) A month after defendant was fired, he remembered he still had keys to the warehouse. He drove his taxicab to the well-lighted warehouse and began to load computer equipment into it. He put on a pair of rubber surgical gloves he found inside the warehouse. When he discovered the cab was too small to hold the packaged equipment, he removed the computer parts from the boxes, and loaded them into his cab. He disconnected the warehouse phones, and stole two of them. The Second Circuit found that defendant’s theft was a “spontaneous, reckless caper” that did not involve more than minimal planning under § 2B1.1(b)(5). Defendant drove up to a well-lighted warehouse in a conspicuous yellow taxicab that was too small to carry the boxes of computer components he stole. He only disabled the warehouse phones in order to steal them. His use of the gloves he found was not significant. If he had really planned the offense, he would have brought gloves with him. U.S. v. Cropper, 42 F.3d 755 (2d Cir. 1994).

2nd Circuit says brandishing weapon and uttering a threat merits only 3 level enhancement. (160) Defendants robbed a bank with what appeared to be handguns, but were later were determined to be toy guns. Defendants ordered employees and customers to lie on the floor, pointed their weapons at the victims, and threatened to kill anyone who disobeyed. The district court imposed a four level enhancement under § 2B3.1(b)(2) for “otherwise using” a dangerous weapon. The 2nd Circuit reversed, holding that the combination of brandishing the weapon and uttering a threat still counted only as brandishing the weapon, justifying only a three level enhancement. When a robber points a gun at a robbery victim, that gesture is inherently threatening. Coupling that implicit threat with the utterance of an explicit verbal threat may constitute additional conduct, but it does not constitute additional use of the weapon. U.S. v. Matthews, 20 F.3d 538 (2d Cir. 1994).

2nd Circuit says defendant need not be involved in planning to receive more than minimal planning enhancement. (160) Defendants were convicted of conspiracy to receive and resell stolen goods, primarily silver and gold. The 2nd Circuit upheld a more than minimal planning enhancement under section 2B1.2(b)(4)(B) despite defendants’ claim that they were not personally involved in the planning. Such planning is an offense characteristic, not a characteristic of the individual defendant. The numerous steps taken to conceal the offense, including the decision to melt all the silver and jewelry, the plan to obliterate the watches’ serial numbers, and the discussion of shipping goods outside of New York, more than adequately demonstrated the requisite planning. U.S. v. Rosa, 11 F.3d 315 (2nd Cir. 1993).

2nd Circuit upholds physical restraint enhancement for robber who stepped on victim’s throat. (160) Defendant hit a letter carrier on the head, knocked him to the floor, and immobilized him by stepping on his throat while he stole his wallet and keys. The 2nd Circuit upheld an enhancement under § 2B3.1(b)(4)(B) for physically restraining the victim to facilitate the offense. The court refused to limit physical restraint to the use of some device or means of restraint beyond manual holding. There was no double counting problem since physical restraint is not an element of the offense of robbery. Moreover, because the forcible restraint in this case went beyond simple battery, no double counting resulted from imposing an enhancement for injury to the victim and physical restraint. U.S. v. Rosario, 7 F.3d 319 (2nd Cir. 1993).

2nd Circuit rejects double counting challenge to leadership and more than minimal planning enhancements. (160) The 2nd Circuit rejected defendant’s claim that a leadership enhancement under section 3B1.1(a) and a more than minimal planning enhancement under section 2F1.1(b)(2)(A) constituted impermissible double counting. Double counting is legitimate where a single act is relevant to two dimensions of the guidelines analysis. Leading and planning are two different aspects of criminal conduct. U.S. v. Rappaport, 999 F.2d 57 (2nd Cir. 1993).

2nd Circuit says transfer of stolen property to mother’s house showed more than minimal planning. (160) Defendant was convicted of several counts relating to the theft and possession of stolen government property. The 2nd Circuit held that an enhancement under section 2B1.2(b)(4)(B) for more than minimal planning was supported by defendant’s transfer of the stolen property to his mother’s house and its concealment there, 70 miles from the site of the burglary. U.S. v. Streich, 987 F.2d 104 (2nd Cir. 1993).

2nd Circuit upholds enhancements for both more than minimal planning and abuse of trust in bank officer embezzlement case. (160) Defendant embezzled $9 million from the bank where he was employed. The 2nd Circuit rejected defendant’s claim that it was impermissible double counting to enhance his sentence for more than minimal planning and for abuse of a position of trust. These are not duplicative enhancements. When a ranking bank officer abuses his position of trust to facilitate commission of a crime and engages in more than minimal planning, he is properly subject to both enhancements. U.S. v. Marsh, 955 F.2d 170 (2nd Cir. 1992).

2nd Circuit upholds more than minimal planning enhancement. (160) The 2nd Circuit affirmed that defendant’s fraud scheme merited a two-point enhancement for more than minimal planning. Defendant “concoct[ed]” a scheme to move a business that he did not own to a new town and received a $250,000 advance from the town. The money that defendant received was preceded by extensive negotiations and travel by both the town representatives and defendant over many months. It was based upon a false financial statement that was “anything but a simple planning device.” The district court did not improperly consider uncharged conduct in making the more than minimal planning determination. Although the district court did refer to other frauds which defendant perpetrated, this was done merely to “illustrate [defendant’s] penchant for developing ‘elaborate’ schemes that are ‘drenched in fraud.” The court did not suggest that defendant’s other fraudulent activities per se played a part in his scheme to defraud the town. U.S. v. Brach, 942 F.2d 141 (2nd Cir. 1991).

2nd Circuit finds that misrepresentation that defendant was a government official involved more than minimal planning. (160) Defendant had numerous contacts with a real estate broker over a period of several weeks during which defendant misrepresented that he was employed by the U.S. State Department. In his assumed identity, defendant provided false information concerning his security needs and the government’s role in securing and financing an apartment he was attempting to purchase. Defendant was convicted of making a false statement, and his base offense level was increased under guideline § 2F1.1(b)(2)(A) because the offense involved more than minimal planning. The 2nd Circuit agreed with this, finding that defendant’s repeated acts over a period of several weeks justified the enhancement. U.S. v. Bakhtiari, 913 F.2d 1053 (2nd Cir. 1990).

2nd Circuit holds that an inoperable pellet gun is a dangerous weapon. (160) The 2nd Circuit held that an inoperable pellet gun is a dangerous weapon within the meaning of § 2B3.1(b)(2)(c). Thus, it was proper to rely on that section to enhance the offense level of a bank robber who used one during a bank robbery by three levels. Application Note 1(e) to § 1B1.1 states that a pellet gun is a dangerous weapon. The Supreme Court has held that a gun is a dangerous weapon whether loaded or not given the violent response it may provoke. Thus, the three level enhancement was proper. U.S. v. Laughy, 886 F.2d 28 (2nd Cir. 1989).

3rd Circuit rejects amended judgment as afterthought, not alternative basis for sentence. (160) Defendant robbed a bank, telling the bank teller that he had a knife. He also gave the teller a note which read, “Give me all the money now or I will stab you.” But defendant’s knife remained in his pocket. At sentencing, the court increased the sentence under subsection (E) of § 2B3.1(b)(2), by four levels for “brandishing” the knife, and sentenced defendant to 71 months, at the upper end of the guideline range. Fourteen days after sentencing—outside the time limit set by Rule 35(a)—the court filed an amended judgment, stating that even if it had applied a three-level increase under subsection (D) for “otherwise using” the knife, it still would have sentenced defendant to 71 months. On appeal, the government conceded that the increase should have been only three levels. The Third Circuit agreed, and ruled that the amended judgment did not make the error harmless. The alternative sentence was devoid of any justification for deviating eight months above the upper end of the guideline range. Such a bare statement was at best an afterthought, not an amplification of the court’s sentencing rationale. U.S. v. Smalley, 517 F.3d 208 (3d Cir. 2008).

3rd Circuit holds that defendant “otherwise used” dangerous weapon. (160) Defendant robbed a bank carrying what appeared to be a black handgun, but was actually a dismantled pellet gun. During the robbery, defendant held the gun to the head of the assistant manager and directed her to empty a cash box into a garbage bag. The Third Circuit upheld a § 2B3.1(b)(2)(D) increase for “otherwise using” a dangerous weapon. Pointing a gun at the head of the assistant manager and ordering her to empty money into a garbage bag was a “specific threat” directed at her and was precisely the type of conduct which satisfies the “otherwise used” requirement. Neither the guidelines nor case law requires infliction of violent physical contact or a verbalized threat to harm the victim in order to constitute “otherwise used.” U.S. v. Orr, 312 F.3d 141 (3d Cir. 2002).

3rd Circuit holds that dismantled pellet gun was “dangerous weapon.” (160) Defendant robbed a bank carrying what appeared to be a black handgun, but was actually a dismantled pellet gun. The district court applied a § 2B3.1(b)(2)(D) increase for otherwise using a “dangerous weapon.” Defendant conceded that the dismantled pellet gun appeared to be a dangerous, but contended that because it was dismantled, it was not so in fact. The Third Circuit held that a dismantled pellet gun, which can used as a bludgeon, is a dangerous weapon within the meaning of § 1B1.1. Moreover, even if a dismantled pellet gun only appeared to be a “dangerous weapon,” it still would qualify as a dangerous weapon. The guidelines uniformly treat objects appearing to be dangerous weapons as if they were in fact dangerous weapons for sentence enhancement purposes, regardless of whether that object is “brandished” or “otherwise used.” U.S. v. Orr, 312 F.3d 141 (3d Cir. 2002).

3rd Circuit says defendants “otherwise used” sledgehammer and baseball bat in robbery. (160) Defendant and three other men robbed a jewelry store. Two of the men carried baseball bats, while defendant and the fourth man wielded sledgehammers to break open the jewelry display cases. During the robbery, one man threatened to hit an employee with the baseball bat unless she put the phone down. The Third Circuit held that defendants “otherwise used” the dangerous weapons, under § 2B3.1(b)(2)(D), rather than merely “brandished” the weapons under § 2B3.1(b)(2)(E). Pointing a weapon at a specific person or group of people, in a manner that is explicitly threatening, is sufficient to constitute “otherwise using” that weapon. See U.S. v. LaFortune, 192 F.3d 157 (1st Cir. 1999). This is true when any dangerous weapon is used; it need not be a firearm. The enhancement was proper here even if verbal threats were required. In addition to defendant’s use of a sledgehammer, one of his co-conspirator’s wielded a baseball bat in a threatening manner and used it to intimidate people in the store. The district court was entitled, for sentencing purposes, to consider the co-defendant’s behavior. U.S. v. Johnson, 199 F.3d 123 (3d Cir. 1999).

3rd Circuit holds that sledgehammer and baseball bat used in robbery were dangerous weapons. (160) Defendant and three other men robbed a jewelry store. Two of the men carried baseball bats, while defendant and the fourth man wielded sledgehammers to break open the jewelry display cases. The Third Circuit held that the sledgehammer, wielded in the course of the robbery and used to smash open display cases in front of bystanders, was a “dangerous weapon.” Under the circumstances, it clearly was “an instrument capable of inflicting death or serious bodily injury.” USSG § 1B1.1, note 1(d). So was the baseball bat carried by a co-defendant. Extending the definition of “dangerous weapon” to cover these objects did not render the definition devoid of meaning. A baseball bat, when carried on the baseball diamond, is clearly a sports implement; a sledgehammer, carried on a construction site, is clearly a tool. But when these items are carried into the scene of a robbery and used to threaten bystanders, they clearly become dangerous weapons. U.S. v. Johnson, 199 F.3d 123 (3d Cir. 1999).

3rd Circuit upholds enhancement for permanent or life-threatening bodily injury. (160) Defendant pled guilty to an aggravated assault on his former girlfriend. The district court applied a six-level enhancement under § 2A2.2(b)(3)(C) for a permanent or life-threatening injury from an aggravated assault. Note 1(h) to § 1B1.1 defines “permanent or life-threatening bodily injury” as “injury involving a substantial risk of death, loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent; or an obvious disfigurement that is likely to be permanent.” The district court found that (1) the elevated and prominent scar on the victim’s face was an obvious disfigurement that was likely to be permanent; (2) defendant had inflicted injuries that left permanent scars all over the victim’s body; (3) the stabbing to the victim’s face, mouth, chest, back and abdomen involved a substantial risk of death; and (4) the assault caused an intestinal obstruction requiring emergency surgery. The Third Circuit ruled that these findings satisfied the definition of permanent or life-threatening bodily injury. Since § 2A2.2(b) (3)(C) is phrased in the disjunctive, a finding of either permanent bodily injury or life-threatening injury would have sufficed to bring defendant’s conduct within the guideline. U.S. v. Jacobs, 167 F.3d 792 (3d Cir. 1999).

3rd Circuit holds government did not prove mace is a dangerous weapon. (160) Defendant sprayed mace in the faces of two tellers while robbing a bank. The Third Circuit held that the government did not prove by a preponderance of the evidence that mace is a dangerous weapon under § 2B3.1(b)(2)(D) and note 1(d) to § 1B1.1. The pamphlet introduced by the government, stated that a substance called “First Strike” caused a death in North Carolina. But it lacked sufficient indicia of reliability for the court’s purposes. First, the pamphlet was promotional literature from a competitor of “First Strike.” Second, the district court had no basis for determining that “First Strike” bore any resemblance to the product used by defendant. The most probative evidence available to the district court was the promotional literature from the company that produced defendant’s mace. The company reported that it had been used for many years without serious injury. The limited testimony of an FBI agent about mace’s effect on the tellers was consistent with the literature’s claims. U.S. v. Harris, 44 F.3d 1206 (3d Cir. 1995).

3rd Circuit examines victims’ symptoms and medical care to decide whether mace caused bodily injury. (160) Defendant sprayed mace in the faces of two tellers while robbing a bank. The district court found that the victims sustained “bodily injury” under §§ 2B3.1(b)(3)(A) and 1B1.1, based on its conclusion that “a victim of mace sustains a significant injury.” The Third Circuit remanded for the district court to examine the character and duration of the symptoms experienced by the tellers, as well as the character of the medical attention they received. The degree of injury from mace will differ depending on factors such as the strength of the particular product used, the distance between the victim and the dispenser, and the angle of delivery. The FBI agent who testified did not know, and the other evidence did not reveal, the nature of the attention given by the paramedics to the tellers. Not all contact between a victim and a health care professional will justify a conclusion that bodily injury occurred. U.S. v. Harris, 44 F.3d 1206 (3d Cir. 1995).

3rd Circuit says four fraudulent requests for payments under defense contract involved more than minimal planning. (160) Defendant’s defendant directed his son to prepare labor sheets falsely showing he had worked 1000 hours on the job. Defendant generated four progress payment requests by repeating this procedure. As a result of the false hours, the company received about $140,000 in accelerated payments. The 3rd Circuit found the district court’s determination that the offense involved only minimal planning to be clearly erroneous. Defendant committed the fraud in such a way that it would have been difficult to discover, even if the government had conducted an audit. In addition, more than minimal planning is present in any case where repeated acts occur over a period of time. Defendant repeated his fraudulent billing scheme four times. U.S. v. Monaco, 23 F.3d 793 (3rd Cir. 1994).

3rd Circuit says more than minimal planning and leadership enhancements are not double counting. (160) The 3rd Circuit held that enhancements under §2B1.5(b)(5) for more than minimal planning and §3B1.1(c) for being an organizer or leader of criminal activity did not constitute double counting. These enhancements address different concerns, and the Sentencing Commission intended both enhancements to be applied, in tandem when appropriate. The more than minimal planning enhancement was intended to distinguish between relatively simple crimes and more sophisticated ones. The adjustment for role in the offense addresses the relative responsibilities for those involved. It is possible for an offense to involve more than minimal planning, but not other people. Similarly, it is possible for someone to be an organizer or leader in a scheme that does not require a great deal of planning. U.S. v. Wong, 3 F.3d 667 (3rd Cir. 1993).

3rd Circuit rejects increase for both more than minimal planning and fraud involving more than one victim. (160) Defendant was convicted of wire fraud. At the time of his sentencing, guideline § 2F1.1(b)(2) provided that “[i]f the offense involved (A) more than minimal planning, or (B) a scheme to defraud more than one victim, increase [the offense level by] 2 levels.” The district court found that both more than minimal planning and more than one victim was involved, and accordingly increased defendant’s offense level by four. The 3rd Circuit found that imposing a four level increase when both these factors were present would “undermine the intent of § of 2F1.1(b)(2),” and that only a two level increase was appropriate. U.S. v. Astorri, 923 F.2d 1052 (3rd Cir. 1991).

3rd Circuit finds that conduct over three week period required more than minimal planning. (160) The district court applied a two level increase for more than minimal planning. The 3rd Circuit affirmed, as defendant received seven stolen checks from a government informant or wife and sold the checks to undercover agents on three separate occasions in a three week period. The defendant once arranged the transaction, and each time drove to a prearranged location and entered the agent’s vehicle to complete the transaction. The district court’s decision was not clearly erroneous. U.S. v. Cianscewski, 894 F.2d 74 (3rd Cir. 1990).

4th Circuit holds ordering bank tellers to floor at gunpoint constituted physical restraint. (160) The robbery guideline provides for a two-level enhancement if “any person was physically restrained to facilitate the commission of the offense or to facilitate escape.” § 2B3.1(b)(4) (B). The district court applied the enhancement because during the robbery, defendant pointed his gun at two tellers and ordered them to lie on the floor. The Fourth Circuit held that ordering the bank tellers to the floor at gunpoint constituted physical restraint. The two bank tellers were prevented from both leaving the bank and thwarting the bank robbery. This case was indistinguishable from U.S. v. Wilson, 198 F.3d 467 (4th Cir. 1999), where defendants pointed a gun at the victim’s head and prevented her from leaving her car until she turned over both her money and her car. U.S. v. Dimache, 665 F.3d 603 (4th Cir. 2011).

4th Circuit holds that gripping victim’s arms and holding her down while another man raped her qualified as “physical restraint.” (160) Defendant raped a woman and then assisted another man in raping the woman. While the other man was raping the victim, defendant gripped her arms and held her down. The Fourth Circuit held that defendant’s actions qualified as “physical restraint” under the guidelines definition in § 1B1.1, note 1(K). U.S. v. Johnson, 492 F.3d 254 (4th Cir. 2007).

4th Circuit approves more than minimal planning increase proper for appraising assets and transferring them to auction houses. (160) The district court applied a 2F1.1(b)(2)(A) more than minimal planning enhancement to a bankruptcy fraud defendant who concealed assets based on the following: Defendant “engaged an appraiser. He arranged for auction houses. He actually transferred the assets, some of them at least himself, attended the auctions …. [H]e was clearly involved in trying to get these assets sold and get proceeds, again, all the time, not disclosing.” Given the multiple steps taken by defendant to have his wife’s assets transferred to the auctions houses and appraised, the Fourth Circuit held that the district court did not clearly err in applying the more than minimal planning enhancement. U.S. v. Hughes, 401 F.3d 540 (4th Cir. 2005).

4th Circuit holds that concealed hand appeared to be dangerous weapon. (160) During two bank robberies, defendant handed a bank teller a note that stated: “I have a gun. Be quiet.” He kept his hands in his coat pocket during the majority of both robberies. The district court applied a § 2B3.1(b)(2)(E) dangerous weapon increase. Under Note 2, the enhancement applies if the robber brandishes, displays or possesses an object that appears to be a dangerous weapon but in fact is not. The Fourth Circuit held that defendant’s concealed hand was an object that appeared, by virtue of his statement that he possessed a gun, to be a dangerous weapon. When defendant presented the teller with a note stating that he had a gun and placed his hand in his coat pocket, he created the appearance that he had a gun in his pocket, regardless of whether he actually had a gun. A body part such as a hand can serve as an “object” that appears to be a dangerous weapon. See, e.g. U.S. v. Vincent, 121 F.3d 1451 (11th Cir. 1997); U.S. v. Dixon, 982 F.2d 116 (3d Cir. 1992). Although the hand was not given the visual appearance of a gun, the panel refused to restrict the meaning of the word “appear” to visual or sensorial appearance. Defendant’s hand appeared to be a gun because it was concealed in his coat pocket and because he told the teller he possessed a gun. U.S. v. Souther, 221 F.3d 626 (4th Cir. 2000).

4th Circuit says obtaining numerous implements to produce false ID involved more than minimal planning. (160) Defendants were convicted of knowingly possessing implements with the intent to produce false identification documents. At defendants’ residence police found such things as laminating materials, lettering materials, a laminating machine, photo equipment with backdrops, blank driver’s licenses from at least two states and partially completed driver’s licenses. The Fourth Circuit agreed that the assembling of numerous and widely varied implements involved more than minimal planning. U.S. v. Pearce, 65 F.3d 22 (4th Cir. 1995).

4th Circuit finds more than minimal planning and abuse of trust for skimming from bingo games. (160) Defendant, president of the local sheriff’s association, skimmed proceeds from the public bingo games conducted by the association. The 4th Circuit upheld more than minimal planning and abuse of trust enhancements. More than minimal planning is present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Defendant’s skimming was not an isolated act. He ran the game twice a week over a period of nearly two years with the intent to skim the proceeds each evening. The abuse of trust enhancement was also proper. Defendant misrepresented to the public that he was conducting the bingo games solely on behalf of the sheriff’s association, a charitable organization. However, he was acting in part for himself and his fellow deputies. U.S. v. Marcum, 16 F.3d 599 (4th Cir. 1994).

4th Circuit says adjustment for both managerial role and more than minimal planning was not “double counting.” (160) Defendant used a fraudulently obtained government identification badge to persuade a store owner that the government would pay for the furniture, and had two friends pose as government agents. The 4th Circuit rejected defendant’s argument that there were no other participants and thus he was not a manager or organizer of the crime. Defendant’s friends actively participated in the crime by posing as government agents, and defendant exercised authority over them. Moreover, it was not double counting to enhance defendant’s sentence for more than minimal planning. Defendant’s use of his friends was just one of the elements relied upon by the court to find more than minimal planning. On his own, defendant also set up a corporation used in committing the crime, obtained the identification badge, and visited the store on more than one occasion. These actions alone, without the involvement of his friends, would have constituted more than minimal planning. U.S. v. Curtis, 934 F.2d 553 (4th Cir. 1991).

4th Circuit rules increase for more than minimal planning was not double punishment. (160) Defendant argued that he was subjected to double punishment when the court found his assault was aggravated and then raised the offense level by two for more than minimal planning. The 4th Circuit rejected this argument. Aggravation of an assault and amount of planning are merely factors for a district court to consider before arriving at a proper sentence. The court commented that “allocation of additional guilt for the more deliberate commission of a crime is entirely consistent with human experience,” citing the difference between murder and manslaughter as an example. U.S. v. Foster, 898 F.2d 25 (4th Cir. 1990).

5th Circuit holds that victim with broken rib, bruised buttocks, and cuts suffered serious bodily injury. (160) Defendant, a member of a drug cartel, was convicted of kidnapping a drug dealer. During his 16-day detention, the dealer was threatened and brutalized. Defendant challenged a § 2A4.1(b)(2)(B) enhancement, claiming that although the victim was treated inhumanely and in a manner that shocked the conscience, he did not sustain “serious bodily injury.” The Fifth Circuit upheld the enhancement. The victim was assaulted repeatedly, resulting in a broken rib, bruised buttocks, and cuts behind the ears. It was plausible for the district court to conclude that these injuries involved “extreme pain” and therefore qualified as serious bodily injuries. U.S. v. Garza-Robles, 627 F.3d 161 (5th Cir. 2010).

5th Circuit rules career offenders are not eligible for minor role adjustments. (160) Defendant pled guilty to drug charges, and was sentenced to 290 months as a career offender. The district court rejected defendant’s request for a minor role reduction even though he was a minor participant, because the career offender provision precludes any mitigating role adjustments. The Fifth Circuit agreed. The step-by-step “Application Instructions” in § 1B1.1 govern application of the Guidelines, “except as specifically directed.” Applying the Chapter Three minor participant adjustment after the Chapter Four career offender provision would disrupt the sequence mandated by § 1B1.1. The only Chapter Three adjustment explicitly permitted by § 4B1.1(b) is the acceptance of responsibility adjustment. U.S. v. Cashaw, 625 F.3d 271 (5th Cir. 2010).

5th Circuit rules BB gun qualified as dangerous weapon. (160) Defendant used a BB gun to rob a bank. The district court applied a four-level enhancement under §2B3.1(b)(2)(D) for otherwise using a “dangerous weapon.” A dangerous weapon in Note 1(D) to §1B1.1 is defined as “an instrument capable of inflicting death or serious bodily injury,” or, an object not capable of inflicting death or serious bodily injury, but which closely resembles such an object, or if the defendant used the object in a manner that created the impression that the object was such an instrument. The Fifth Circuit held that defendant’s BB gun qualified as a dangerous weapon. Defendant pointed the gun at the teller’s face, using the gun as though it were a more dangerous firearm to threaten the bank employees. Moreover, a BB gun is capable of inflicting “serious bodily injury.” U.S. v. Dunigan, 555 F.3d 501 (5th Cir. 2009).

5th Circuit finds that pointing gun at teller’s face was “otherwise using” the weapon. (160) Defendant jumped over a counter at a bank, pointed a BB gun at a teller’s face, and shouted “Shut the f*** up, b****” and “give me all your money.” Defendant argued that the court erred in finding that he “otherwise used” a dangerous weapon during the robbery, meriting a four-level enhancement under §2B3.1(b)(2)(D), and that he only “brandished” the weapon. The Fifth Circuit held that by pointing the gun at the teller’s face, rather than merely displaying it for intimidation purposes, defendant “otherwise used” the gun rather than “brandished” it. Under the 2000 guideline amendments, displaying a weapon without pointing or targeting qualifies as “brandishing” the weapon, while pointing the weapon at any individual or group of individuals in a specific manner constitutes “otherwise using” the weapon. To the extent this framework conflicts with previous caselaw drawing a distinction between an “implicit” and an “explicit” threat, that framework no longer governs. U.S. v. Dunigan, 555 F.3d 501 (5th Cir. 2009).

5th Circuit holds that defendant who pointed shank and swung it at assault victim “otherwise used” the shank. (160) Defendant, a federal inmate, was convicted of forcibly assaulting a federal corrections officer, in violation of 18 U.S.C. § 111. Section 2A2.2 provides for a four-level enhancement if a dangerous weapon was “otherwise used,” and by three levels if a dangerous weapon was brandished or its use was threatened. “Otherwise used” means that the conduct did not amount to the discharge of a firearm, but was more than brandishing, displaying, or possessing the dangerous weapon. “Brandished” means that all of 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. Here, after hitting the officer and knocking him to the ground, defendant pulled out a shank (a homemade knife), and swung it at the officer. The Fifth Circuit upheld a § 2A2.2(b)(2)(B) increase for “otherwise using” the shank during the assault. Defendant did more than just display the shank, or make its presence known in order to intimidate. Defendant both pointed and swung the shank towards the officer. U.S. v. Williams, 520 F.3d 414 (5th Cir. 2008).

5th Circuit finds child abuser engaged in more than minimal planning. (160) Examination of defendant’s three-month-old twin daughters revealed, in each child, between ten and twenty fractures that occurred on at least two separate occasions. Defendant acknowledged injuring the children and then not taking them to a doctor. He told his wife he did not know what was wrong with the arm of one of the girls, but later admitted to investigators that he had injured her when removing her from a car seat. On these facts, the Fifth Circuit found no clear error in the district court’s finding that defendant had engaged in “significant affirmative steps” to conceal the offense, and therefore it was proper to increase the offense level by two levels under § 2A2.2(b)(1) for “more than minimal planning.” U.S. v. Perrien, 274 F.3d 936 (5th Cir. 2001).

5th Circuit finds more than minimal planning where drunk driving defendant fled scene of accident. (160) Defendant pled guilty to intoxication assault in violation of Texas law, and the Assimilative Crimes Act. The district court applied a § 2A2.2(b)(1) more than minimal planning increase “not because the planning prior to the offense, but the planning to cover up the offense that occurred after the striking of the vehicle and [the victim].” The district court’s finding that defendant attempted to flee the scene of the crime was supported by adequate evidence and based on a credibility determination between the witnesses and was thus entitled to deference. Accordingly, the Fifth Circuit affirmed the enhancement. U.S. v. Calbat, 266 F.3d 358 (5th Cir. 2001).

5th Circuit holds that threat combined with brandishing gun constituted “otherwise using” firearm. (160) Defendant opened a car door, grabbed the woman driver by her hair and put a gun in her face. The victim wrestled with defendant and managed to get out of the car for a moment, only to be subsequently struck on the back of the head and forced back into the vehicle. The victim eventually escaped by jumping out of the moving car. The Fifth Circuit affirmed a six-level increase under § 2B3.1(b)(2)(B) for “otherwise using” a firearm. Making threats while brandishing a firearm constitutes “otherwise using” a firearm. U.S. v. Burton, 126 F.3d 666 (5th Cir. 1997). The victim was clearly grabbed by the hair and had a gun stuck in her face. Further, the PSR indicated that the suspect told the victim “I’m going to kill you, you white ho.” The threat of death in conjunction with the brandishing of the firearm constituted “otherwise using” a firearm. U.S. v. Jefferson, 258 F.3d 405 (5th Cir. 2001).

5th Circuit holds that nonverbal conduct can constitute “otherwise using” firearm. (160) Defendant and several others stole computer chips from a facility in Texas. On the night of the robbery, the robbers hid near an employee entrance and attacked an employee at gunpoint. The robbers entered the building using the employee as a hostage, while holding a gun to his head. Once in the building, the other employees were accosted at gunpoint and handcuffed. The employees then had their eyes covered with duct tape. The Fifth Circuit held that the district court properly enhanced defendant’s sentence under § 2B3.1(a)(2) for “otherwise using” a firearm rather than merely “brandishing” a firearm. This case was distinguishable from U.S. v. Gonzales, 40 F.3d 735 (5th Cir. 1994), which held that pointing a gun and instructing that a cash register be opened only amounted to “brandishing” a gun. Gonzales said that implicit threats are insufficient to constitute “otherwise using” a firearm. However, Gonzales did not say that explicit threats need to be verbal. In the present case, the threat with the gun was explicit, although not verbal. Victims were physically abused, and the conduct of the robbers clearly signaled that further violence, including use of the guns, would be the consequence of resistance. U.S. v. Nguyen, 190 F.3d 656 (5th Cir. 1999).

5th Circuit says defendant’s attempts to conceal theft involved more than minimal planning. (160) Defendant participated in the theft of an interstate shipment of computers. The Fifth Circuit approved a § 2B1.1(b)(4) more than minimal planning enhancement based on testimony that defendant helped examine and approve the warehouse used to store the stolen computers, picked up the warehouse key, and signed rent checks with an assumed name and address. In other words, defendant arranged a manner of concealing the theft that required numerous contacts with a real estate broker, the acquisition of money orders, and the use of false information. U.S. v. Lage, 183 F.3d 374 (5th Cir. 1999).

5th Circuit finds insufficient evidence to support bodily injury enhancement. (160) Defendant was convicted of two bank robberies committed in April and May of 1994. The district court applied a § 2B3.1(b)(3) enhancement for “bodily injury.” The PSR stated that for the April robbery, a guard was “pistol whipped,” and for the May robbery, that a guard “was struck on his back.” In applying the enhancement for both robberies, the judge stated that only “minimal, minimal injury” is required. After vacating the conviction for the April robbery, the Fifth Circuit held that the bodily injury enhancement for the May robbery was reversible error because the record did not contain any evidence of injury. The PSR did not indicate that the guard’s being “struck on the back” resulted in any bruising, swelling, or other type injury. The assaulted guard did not testify at sentencing. The judge’s statement that the enhancement required only “minimal, minimal injury” was incorrect. Note 1(b) to § 1B1.1 defines bodily injury in part as “any significant injury, e.g. an injury that is painful and obvious, or of a type for which medical attention ordinarily would be sought.” U.S. v. Guerrero, 169 F.3d 933 (5th Cir. 1999).

5th Circuit affirms more than minimal planning enhancement for repeated acts. (160) Defendant was friends with an officer of a corporation that provided management services for properties which had been placed in receivership. Under the terms of its contracts, the corporation was barred from hiring related companies to perform services at the properties without acquiring approval. Defendant helped the corporation defraud the RTC and the FDIC by falsely posing as the owner of a company bidding on repair work, and accepting checks issued to this company. The Fifth Circuit affirmed a more than minimal planning enhancement because defendant engaged in repeated criminal acts. U.S. v. Burns, 162 F.3d 840 (5th Cir. 1998).

5th Circuit finds “permanent or life-threatening bodily injury” to non-dominant hand. (160) Defendant tossed an FBI agent through a plate-glass door. Three tendons and some nerves in the agent’s left hand were severed and he experienced difficulty firing a gun with his left hand, which was his non-dominant hand. The surgeon estimated that the agent suffered a 10% to 20% loss of function in his left thumb from the tendon injuries and an additional 5% from the nerve damage. The surgeon also said the injuries were permanent. The Fifth Circuit held that the permanent injury to the victim’s non-dominant hand qualified as a “permanent or life-threatening bodily injury” under note 1(h) to § 1B1.1, and thus justified a seven level enhancement under § 2A2.2(b)(3). The plain language of note 1(h) encompasses injuries that may not be terribly severe but are permanent ¾ hence the disjunctive “permanent or life-threatening.” Absurdity is avoided by the requirement that the injury be “substantial.” U.S. v. Price, 149 F.3d 352 (5th Cir. 1998).

5th Circuit says gun was “otherwise used” to threaten bank employees. (160) Defendants robbed a bank at gunpoint. The district court applied a § 2B3.1(b)(2)(B) enhancement for otherwise using, but not discharging, a firearm during the commission of the robbery. The Fifth Circuit held that the “otherwise used” enhancement was proper because defendants both pointed their weapons at the bank employees and explicitly threatened them. U.S. v. Fletcher, 121 F.3d 187 (5th Cir. 1997), abrogation on other grounds recognized by U.S. v. Robinson, 367 F.3d 278 (2004).

5th Circuit holds that disfigurement was permanent or life threatening injury. (160) In stealing a car, defendant fired several weapons at one of the victims. The victim suffered permanent scars on the his back, arm and leg resulting from wounds caused by bullets and shotgun pellets. The Fifth Circuit upheld a six level enhancement under § 2B3.1(b)(3)(C) for a permanent or life threatening injury. The victim incurred over 30 gunshot wounds to his body, and his body still contained a number of lead fragments. The victim testified that the physical appearance produced by the gunshot wounds caused him to be too embarrassed to take off his shirt. The victim suffered a permanent and obvious disfigurement. U.S. v. Hawkins, 87 F.3d 722 (5th Cir. 1996).

5th Circuit agrees that intricacy and repetitiveness of bank fraud warranted upward departure. (160) Defendant was hired by her mother’s employer to perform various accounting and bookkeeping functions. Over a ten month period, she embezzled large sums of money from three different bank accounts by forging her mother’s name and depositing the proceeds in her own accounts. The Fifth Circuit agreed that the degree of intricacy of the scheme was not accounted for by the more than minimal planning enhancement in § 2F1.1 and justified an upward departure. The offense involved multiple acts of forgery, fraudulent representations to set up an unauthorized account to route the embezzled funds, repeated acts of embezzlement from various accounts, the transfer of embezzled funds into several accounts belonging to defendant or her alter egos at different banks, and the skillful shifting of funds among all the accounts to conceal the embezzlement. The repetitiveness, intricacy, and sophistication of defendant’s scheme were substantially in excess of that which is ordinarily involved in bank fraud. U.S. v. Kay, 83 F.3d 98 (5th Cir. 1996).

5th Circuit says repeated false statements to IRS constituted more than minimal planning. (160) After the IRS assessed a large tax deficiency against defendant, it notified him that it intended to file a lien against his architectural company, and to levy the firm’s bank accounts and its contract with a mall developer. Defendant then entered a personal contract with the developer for continuing architectural services, supplanting the contract on which the IRS had a levy. Although he received over $270,000, he repeatedly denied to the IRS that he had received any money from the project. The Fifth Circuit agreed that the offense involved more than minimal planning because defendant repeated the same false statements that he had not received any money from the contract. The mere fact that the meetings and conversations were initiated by the IRS did not make the false statements “purely opportune.” Defendant is not shielded from the consequences of his repeated actions by the vigilance of the IRS agent. U.S. v. Clements, 73 F.3d 1330 (5th Cir. 1996).

5th Circuit holds that prisoners’ money order scheme involved more than minimal planning. (160) Defendant, a prison guard, was involved in an altered money order scheme organized by the prison’s inmates. The Fifth Circuit held that the scheme involved more than minimal planning under § 2F1.1. The elaborate plan required the inmates to form a relationship with a victim, purchase and alter money orders, transmit the illegal proceeds through the mails, and smuggle the funds into prison. Moreover, defendant’s offense involved more than one victim since the funds she carried into the prison were traced back to two different victims. U.S. v. Scurlock, 52 F.3d 531 (5th Cir. 1995).

5th Circuit finds false entry count involved more than minimal planning. (160) Defendant, a bank president, had the bank pay for the installation of a new air conditioner at his home and the installation of his used unit in a house owned by the bank. The 5th Circuit agreed that the offense involved more than minimal planning. Defendant took steps to conceal the offense by causing false entries to be made on the bank’s books. U.S. v. McCord, 33 F.3d 1434 (5th Cir. 1994).

5th Circuit agrees that post-traumatic stress syndrome is serious bodily injury. (160) Defendant robbed a federal credit union at gunpoint. The 5th Circuit held that a credit union employee’s post-traumatic stress syndrome was a serious bodily injury under § 2B3.1(b)(2)(B). A doctor testified that the victim had become a frightened, dependent, non-functional, psychiatric casualty with a severe psychiatric disorder. The victim’s condition fell within the definition of impairment of a function of mental faculty. Serious bodily injury does not require a corporal injury. U.S. v. Reed, 26 F.3d 523 (5th Cir. 1994).

5th Circuit says wooden stick and gun used to beat kidnap victim was a dangerous weapon. (160) Defendants beat a kidnapping victim with a wooden stick and a gun, threw him in the trunk of a car, and drove around with the victim in the trunk. The 5th Circuit upheld the finding that the wooden stick and gun were dangerous weapons under application note 1(d) to section 1B1.1. The wooden stick served as a dangerous weapon because of its characteristics (a rather large stick of manzanita wood, a hard wood used to make bird cages) and the manner in which it was used by one defendant (to beat the victim on his head, arms and legs.) Although two other defendants did not inflict major injuries with either the stick or the gun, they could have reasonably foreseen the way in which the first defendant used the stick. They also used the stick and gun in ways that intimidated the victim. Thus, an enhancement under § 2A4.1(b)(3) for using a dangerous weapon was justified. U.S. v. Davis, 19 F.3d 166 (5th Cir. 1994).

5th Circuit holds that victim who seemed more dead than alive suffered serious bodily injury. (160) Defendants beat a kidnapping victim with a wooden stick, threw him in the trunk of a car, and drove around with the victim in the trunk. At one point, one defendant told another defendant that he thought the victim was dead. The 5th Circuit upheld an enhancement under section 2A4.1(b)(2)(B) for inflicting serious bodily harm. The district court did not commit clear error in concluding that the victim’s numerous lacerations and other injuries rose to the level of serious bodily injury. One defendant had recognized that the victim seemed more dead than alive. A third defendant deserved the enhancement, even if he did not participate in inflicting the injuries. This defendant plotted with the other defendants at the beginning of the conspiracy and traveled in the car with the victim in the trunk, knowing the victim needed medical attention. U.S. v. Davis, 19 F.3d 166 (5th Cir. 1994).

5th Circuit holds that prison money order scam involved more than minimal planning. (160) Defendant, a contract food manager for a prison, was involved in a scheme by the prisoners to cash altered money orders. The 5th Circuit affirmed that the scheme involved more than minimal planning under section 2F1.1(b)(2). The scheme involved significant planning to obtain and alter money orders, to target and manipulate specific victims, to conceal the offense, and to smuggle the proceeds into prison. The guidelines do not require the government to prove that the offense was somehow more elaborate than comparably elaborate offenses, but rather that it involved more planning than a “simple form” of the offense. U.S. v. Brown, 7 F.3d 1155 (5th Cir. 1993).

5th Circuit upholds firearm enhancement for disassembled shotgun that could have been assembled in 30 seconds. (160)) Defendant argued that a firearm enhancement under section 2D1.1(b)(1) did not apply because the shotgun found in his van was disassembled. The 5th Circuit upheld the enhancement, because the disassembled shotgun could have been assembled in 30 seconds. Application note 1(e) to section 1B1.1 defines a firearm as any weapon which will or “may readily be converted” to expel a projectile by the action of the explosive. U.S. v. Ryles, 988 F.2d 13 (5th Cir. 1993).

5th Circuit finds that concealment of funds from bankruptcy court involved more than minimal planning. (160) Defendant attempted to conceal his receipt of $175,000 from a bankruptcy court by negotiating the check, obtaining a certificate of deposit in his mother-in-law’s name, and three cashier’s checks made payable, respectively, to his mother-in-law, his sister-in-law, and himself. Defendant then opened a new checking account in an out-of-town bank and gave $30,000 to an unidentified man. The 5th Circuit found that defendant’s actions went beyond merely opening an account to hold the money, but was “a systematic scheme involving multiple banks and many different parties.” Therefore, it was proper to increase defendant’s offense level because his offense involved more than minimal planning. U.S. v. Beard, 913 F.2d 193 (5th Cir. 1990).

5th Circuit finds that cutting wire from Army communications line involved more than minimal planning. (160) Defendant received information from telephone workers as to which cables on an Army missile range were not in service. He collected cutting tools, cut the wires, loaded the wires into his vehicle, sought a buyer, transported the wires to the buyer, and made the sale. Reviewing the district court’s ruling under the clearly erroneous standard, the 5th Circuit agreed that defendant had committed a crime involving more than minimal planning, justifying a two level increase under guideline § 2B1.1(b)(4). U.S. v. Barndt, 913 F.2d 201 (5th Cir. 1990).

6th Circuit upholds dangerous weapon increase for striking officer with plastic pitcher. (160) Defendant struck a Deputy United States Marshal in the head with a plastic water pitcher at the conclusion of a trial, and pled guilty to assaulting a federal officer. The district court found that the pitcher constituted a “dangerous weapon,” and applied a four-level enhancement under § 2A2.2(b)(2)(B). The Sixth Circuit affirmed. A “dangerous weapon” is defined as having “the meaning given that term in § 1B1.1, Application Note 1, and includ[es] any instrument that is not ordinarily used as a weapon (e.g., a car, a chair, or an ice pick) if such an instrument is involved in the offense with the intent to commit bodily injury.” The pitcher was made of a very hard plastic material, had a six-inch handle, weighed about half of a pound to a pound when empty, and may have contained some water. These characteristics increased the energy that an attacker would be able to impart when striking a victim. It was reasonable to infer that such a water pitcher, swung with sufficient force and proper aim, was capable of inflicting serious bodily harm as defined by the guidelines. U.S. v. Tolbert, 668 F.3d 798 (6th Cir. 2012).

6th Circuit holds that use of “stun pen” justified dangerous weapon enhancement. (160) Defendants stole rare books from the special collections library of a local university. During the robbery, they used a “stun pen” to subdue the librarian. Section 2B1.5(b)(6) provides for a two-level enhancement if a dangerous weapon was brandished or its use was threatened. The stun pen used here was only capable of producing 8,000 volts (it was powered by two AAA batteries) and was incapable of causing serious injury. The government, argued, however, that the pen could reasonably be perceived as being capable of inflicting serious bodily injury, while defendants contended that it could not. The Sixth Circuit upheld the dangerous weapon enhancement. Two robbers wrestled the librarian to the ground while zapping her in the arm with the stun pen. Although this only caused her to feel a tingling sensation and left a small bruise, one of the robbers also warned her: “B.J., if you keep on struggling, it will only hurt more. Do you want it to hurt more?” The “it” was presumably the zapping from the stun pen. The clear representation of this statement was that the robber had a weapon, was using the weapon, and was prepared to use it more, to inflict more pain, unless she submitted. U.S. v. Allen, 516 F.3d 364 (6th Cir. 2008).

6th Circuit holds that combination of injuries amounted to life-threatening bodily injury. (160) Defendant, a truck driver, was convicted of interstate domestic abuse after he inflicted several beatings on his wife during an interstate trip. The district court applied a six-level enhancement under § 2A2.2(b)(3) for the infliction of permanent of life-threatening bodily injury. The court reviewed the extensive injuries sustained by defendant’s wife and emphasized the fractured finger, the cracked tooth and substantial contusions and bruises as depicted in various photographs. The court also recounted the testimony from witnesses that the victim literally crawled into the distribution center at the end of the trip with very visible injuries together with spatial disorientation. While the court was not persuaded that the victim’s kidney problems were caused by the assault, the court concluded that the combination of the various conditions together with severe bleeding, bruising and broken bones could reasonably be viewed as amounting to a life-threatening bodily injury. The Sixth Circuit ruled that this finding was not clearly erroneous. U.S. v. Baggett, 342 F.3d 536 (6th Cir. 2003).

6th Circuit holds using gun barrel to push customer aside, without threat, was not “otherwise using” gun. (160) Armed with a rifle, defendant approached a bank teller while a customer was still at the window. Defendant cut in front of the customer and used the barrel of the rifle to push him aside. He said to the customer “Get out of the way, this doesn’t concern you.” Defendant then pointed the gun at the teller and demanded money. The Sixth Circuit held that defendant merely brandished the firearm, warranting a five-level enhancement, rather than “otherwise used” the firearm, warranting a six-level increase. See USSG § 2B3.1(b)(2). The concept of brandishing includes both pointing the gun and pointing it in a threatening manner. Although defendant used the gun to move a customer aside, this additional conduct was not accompanied by a threatening statement. Rather, defendant made a non-threatening statement to the effect that the customer should move out of the way because this matter did not concern him. In all of the cases cited by the government where the court approved the “otherwise used” increase, the defendant’s actions and/or statements directly threatened an individual with the use of the firearm if the person being threatened did not comply with the defendant’s demands. U.S. v. Moerman, 233 F.3d 379 (6th Cir. 2000).

6th Circuit finds more than minimal planning where defendant traveled to another state, burned ID tags and buried stolen diamonds. (160) Davis, an acquaintance of defendant, stole about 128 diamonds from his employer. Davis flew to Florida, where he contacted defendant and asked him to retrieve some of the contraband. Defendant drove from Tennessee to Florida, picked up some diamonds, and returned to Tennessee. He burned the diamonds’ identifying tags and buried them for safe-keeping. Over a five-month period, defendant sold diamonds to various individuals in Tennessee. The Sixth Circuit affirmed a § 2B1.1(b)(4) increase for more than minimal planning. Defendant traveled to another state to pick up the diamonds, returned home, burned the diamonds’ identification tags to avoid detection, buried the diamonds, fronted diamonds to others for resale, and sold diamonds himself. Given defendant’s attempts to conceal his criminal activity, the court’s finding of more than minimal planning was not clearly erroneous. U.S. v. Moore, 225 F.3d 637 (6th Cir. 2000).

6th Circuit holds that repeated mailings over three-year period involved more than minimal planning. (160) Defendant, a licensed dentist, was convicted of mail fraud for a scheme to defraud the Medicaid program. He submitted thousands of forms by mail certifying that he had performed dental procedures on Medicaid patients which he had not in fact performed. To attract additional Medicaid patients, he also offered them medically unnecessary prescriptions for narcotics. He argued that a more than minimal planning enhancement was improper because he engaged in nothing more than the minimum necessary to commit the offense of mail fraud. The Sixth Circuit found more than minimal planning because defendant engaged in repeated acts over a three-year period of submitting fraudulent claims to the Medicaid program. More than minimal planning can be deduced from repeated acts. U.S. v. Lewis, 156 F.3d 656 (6th Cir. 1998).

6th Circuit says pushing victim while holding bat is not “otherwise using” a weapon. (160) Defendant robbed a bank armed with a wooden baseball bat. When a teller entered the bank, defendant physically forced the teller to the floor. Although he did not raise the bat as if he was going to hit her, he held it in one hand while pushing her to the floor with the other. Defendant told the teller to “Be quiet and I won’t hurt you.” The district court applied a four-level enhancement under § 2B3.1(b)(2)(D) for “otherwise using” a dangerous weapon, while defendant argued that he only deserved a three-level enhancement under § 2B3.1(b)(2)(E) for “brandishing, displaying or possessing” the weapon. The Sixth Circuit held that defendant did not “otherwise use” the bat under § 2B3.1(b); he only “brandished, displayed, or possessed” it. Defendant did not behave more culpably than described in § 2B3.1(b)(E). He did not raise the bat or move it any way, nor did the bat ever touch the teller. Although he verbally threatened her, he did so without reference to the bat. The assault was independent of the bat. U.S. v. Kushmaul, 147 F.3d 498 (6th Cir. 1998).

6th Circuit agrees that postal employee’s thefts involved more than minimal planning. (160) Defendant, a postal employee, repeatedly stole articles from registered parcels. The Sixth Circuit affirmed a § 2B1.1(b)(5)(A) enhancement for more than minimal planning since the conduct took place over several months and the scheme was complicated. Defendant first had to steal the items from the mail and then package and sell them. Also, he had to transport and negotiate the bearer bonds he stole. U.S. v. Comer, 93 F.3d 1271 (6th Cir. 1996).

6th Circuit upholds double counting, ruling Romano is no longer good law. (160) Defendant was one of the four regular credit references for sham businesses that obtained merchandise on credit, sold the goods without making payments for them, and then disappeared. Relying on U.S. v. Romano, 970 F.2d 164 (6th Cir. 1992), defendant claimed that separate enhancements for more than minimal planning and leadership constituted impermissible double counting. The Sixth Circuit held that Romano was abrogated by a November 1, 1993 amendment stating that absent an instruction to the contrary, the adjustments from different guideline sections are applied cumulatively. Thus, the adjustments from both § 2F1.1(b)(2) and § 3B1.1 were properly applied in this case. U.S. v. Cobleigh, 75 F.3d 242 (6th Cir. 1996).

6th Circuit finds more than minimal planning for repeated acts of fraud. (160) Defendant, the vice president of a bank, made repeated loans to fictitious customers and then used the proceeds for his own use. The Sixth Circuit agreed that the offense involved more than minimal planning since it involved repeated acts of fraud. If defendant had not been caught, he would have continued this scheme indefinitely. U.S. v. Berridge, 74 F.3d 113 (6th Cir. 1996).

6th Circuit rules that 221 false applications involved more than minimal planning. (160) Using numerous false names and addresses, defendant joined a record club. After receiving the free tapes and CDs (which he later sold on the street), defendant then refused the later invoices that were sent to the false names. Defendant submitted a total of 221 false membership applications, 208 from his address, five from his step‑daughter’s address, and eight from a third address. The Sixth Circuit agreed that the offense involved more than minimal planning since it involved repeated acts (the false applications), and concealment (false names and addresses). U.S. v. Ellerbee, 73 F.3d 105 (6th Cir. 1996).

6th Circuit says more than minimal planning is based on overall offense, not defendant’s role. (160) Defendant was convicted of wire fraud for submitting false documents to a car dealership to obtain a loan. She contended that the offense did not involve more than minimal planning because the government did not prove that she created the false documents. The Sixth Circuit upheld the enhancement, since the focus of the more than minimal planning enhancement is on the overall offense rather than the role of an individual offender. Defendant’s offense involved more than simply providing false information on an application form. The offense involved preparing the false documents and waiting by the false telephone number to verify defendant’s employment. U.S. v. Horry, 49 F.3d 1178 (6th Cir. 1995).

6th Circuit uses acquitted conduct to decide whether there was more than minimal planning. (160) Defendant, a used car dealer, submitted fraudulent paperwork to a bank and bribed a bank officer to approve dubious automobile loans. He was convicted of two counts of making false statements to a bank, and was acquitted of eight counts of making false statements. He argued that the district court improperly considered acquitted counts in determining that his offense involved more than minimal planning. The Sixth Circuit found no error. The judge believed that the jury had given defendant the benefit of the doubt in acquitting him of eight of the counts, and the judge disagreed with this conclusion. The two false statement counts occurred over a seven month period. The judge could properly find that two instances of overt falsifications over seven months, combined with ample evidence of eight other instances of misrepresentations over the same period of time, was more than minimal planning. U.S. v. Spears, 49 F.3d 1136 (6th Cir. 1995), abrogated on other grounds by U.S. v. Wells, 519 U.S. 482, 117 S.Ct. 921 (1997).

6th Circuit holds conspiracy to convert proceeds from sale of HUD-owned property involved more than minimal planning. (160) Defendant was involved in a conspiracy to defraud HUD by converting the proceeds from the sale of HUD-owned properties. Defendant challenged a more than minimal planning enhancement under § 2B1.1(b)(5)(A) because the organizer of the scheme, and not defendant, did the planning. The Sixth Circuit upheld the enhancement because defendant engaged in repeated acts over time and took significant affirmative steps to conceal the offense. He transferred funds on several occasions and had multiple meetings with his co-conspirators. After defendant was contacted by FBI investigators, he contacted the leader in order to camouflage his involvement in the conspiracy. U.S. v. Griggs, 47 F.3d 827 (6th Cir. 1995).

6th Circuit says toy gun was dangerous weapon despite bank tellers’ belief it might be a toy. (160) Defendant robbed a bank using a toy silver revolver. Two bank tellers told police that the gun could have been a toy, but they were not certain. The 6th Circuit upheld an enhancement under section 2B3.1(b)(2)(E) for possessing a dangerous weapon, despite the tellers’ belief that the gun could have been a toy. A court should apply an objective standard, and not consider the subjective state of mind of the victim. The district court examined a photograph of the gun, and determined that it could be perceived as a dangerous weapon. Thus, brandishing the toy gun increased the risk of harm in the robbery. U.S. v. Woodard, 24 F.3d 872 (6th Cir. 1994).

6th Circuit finds more than minimal planning for medical benefits obtained under false name. (160) Defendant, who had no health insurance, was seriously injured in an accident. His friend took him to the hospital and admitted him under the friend’s name and insurance plan. Defendant was hospitalized for several weeks under his friend’s name and insurance plan. The 6th Circuit upheld a more than minimal planning enhancement under section 2F1.1(b)(2). Defendant took significant affirmative steps to conceal the conspiracy, such as responding to personnel and signing forms under his friend’s name at the three different hospitals. The concealment of the conspiracy included repeated acts furthering the conspiracy. U.S. v. Milligan, 17 F.3d 177 (6th Cir. 1994).

6th Circuit finds rape victim suffered serious bodily injury. (160) Two defendants abducted a young woman and subjected her to repeated oral, anal and vaginal rape. The court imposed an enhancement based on serious bodily injury, justifying it based upon (a) the victim’s testimony she was in terror or intense pain, (b) the police chief’s testimony that he found her very frightened, lying on the motel office floor in the fetal position, and (c) the injury required medical intervention because the emergency room physician had to probe inside the victim’s body. The 6th Circuit agreed that serious bodily injury, as defined in section 1B1, application note 1(b), had occurred. The injury required medical intervention of a most literal sort, which qualified the injury as serious. The injury would also qualify as serious if it involved impairment of a mental faculty, and such impairment could well have happened here. U.S. v. Tipton, 11 F.3d 602 (6th Cir. 1993).

6th Circuit says that “more than minimal planning” must be based on overall scheme, not the role of an individual offender. (160) The 6th Circuit held that a more than minimal planning enhancement is determined on the basis of an overall scheme, not on the role of an individual offender. Here, the bank fraud scheme clearly involved more than minimal planning. The offense involved substantial planning in order to pass instructions from the bank officer through his sister to defendant and to establish a phony company and bank account. There were significant affirmative acts to conceal: the use of intermediaries to avoid detection of the bank officer’s identity and role, the use of a phony bank account in the name “IRS,” and the destruction of the bank’s records. Finally, the scheme also involved repeated acts over a period of time, none of which were “purely opportune.” The fact that defendant did not personally do more planning than typical to commit the offense was not relevant. U.S. v. Ivery, 999 F.2d 1043 (6th Cir. 1993).

6th Circuit finds fraud involved more than minimal planning where defendant provided false documents. (160) Defendant was convicted of making false statements in connection with a loan application. Defendant argued that he should not have been given an enhancement for more than minimal planning because his offense involved no more planning than was required to commit the offense of conviction. Disputing defendant’s characterization of his offense, the 6th Circuit affirmed the enhancement, noting that defendant had supplied a forged letter of credit and a phony purchase order for his stock to support his loan application. U.S. v. Moored, 997 F.2d 139 (6th Cir. 1993).

6th Circuit affirms obstruction and more than minimal planning enhancements. (160)) Defendant’s Ohio driver’s license was suspended for 99-years after numerous convictions for driving while intoxicated. Defendant then obtained an Ohio driver’s license in the name and social security number of another person. While using this false license, he was again arrested for drunk driving. He pled guilty in federal court to using a false social security number. However, at his initial appearance, he did not provide complete information to the court regarding his criminal record, and the magistrate’s order of detention noted that defendant lied to the court about his record. Based upon these circumstances, the 6th Circuit held that enhancements for more than minimal planning and for obstruction of justice were not clearly erroneous. Judge Merritt dissented from the obstruction enhancement, since defendant had also received a reduction for acceptance of responsibility. U.S. v. Eve, 984 F.2d 701 (6th Cir. 1993).

6th Circuit affirms that car burglary involved more than minimal planning. (160) The 6th Circuit affirmed that defendant’s theft of a purse from a locked, parked car involved more than minimal planning. Defendant was observed walking through the parking lot for 30 minutes prior to the theft, looking into a number of cars until he found a suitable target. He twice attempted to gain entry into the car, not giving up the attempt even after setting off the car alarm two times. He brought with him a contorted wire hanger to unlock the car and a towel to conceal both the hanger and his loot, he drove to a more remote parking lot in order to dispose of the purse and he drove to yet another area to change clothes. U.S. v. Gerry, 960 F.2d 599 (6th Cir. 1992).

6th Circuit affirms that car thefts involved more than minimal planning. (160) Defendant was convicted of stealing an FBI vehicle and unlawful conversion with intent to steal a second FBI vehicle. The 6th Circuit affirmed that the offenses involved more than minimal planning. Defendant repeatedly asked his brother-in-law, who was working undercover for the FBI, to watch for a Blazer or Cadillac worth stealing. The brother-in-law then notified defendant of an FBI Cadillac located at a motel parting lot. While en route to the motel to steal the vehicle, defendant stole a different Cadillac parked at another motel, which he stated was necessary to avoid using his own car to steal the FBI vehicle. The method of stealing the FBI Cadillac clearly indicated prior planning. U.S. v. Clark, 957 F.2d 248 (6th Cir. 1992).

6th Circuit upholds increases for more than minimal planning and use of special skill. (160) Defendant, hired as a boat expert by a claims adjuster, fraudulently inflated the cost of boat repair in order to assist the claims adjuster in defrauding the insurance company. Defendant’s offense level was increased by two levels because the crime the involved more than minimal planning and two levels because defendant used a special skill. The 6th Circuit found that two two-level increases were not erroneous. U.S. v. Sloman, 909 F.2d 176 (6th Cir. 1990).

7th Circuit finds any error in applying serious bodily injury increase was harmless. (160) Defendant led police on a high speed chase, resulting in crash that led to a garage fire. One officer spent two days in the hospital as a result of his exposure to the smoke. The Seventh Circuit upheld a four-level increase for “serious bodily injury,” finding it unnecessary to decide whether hospitalization for observation because of the risk of serious injury, rather than because of an actual injury, was sufficient to constitute “serious bodily injury.” Any error here was harmless because it did not affect the sentence imposed. There was at least one “bodily injury” here, because another officer had lacerations in his hand requiring 16 stitches. Thus, even if the four-level increase was improper, defendant’s offense level would be reduced by only two levels, to a range of 235-293 months. The district court imposed the statutory maximum sentence of 240-months, and made it clear that it felt such a sentence was fair under the circumstances. The fact that this was toward the low end of, rather than below, the proper guideline range would not have made any difference. U.S. v. Dortch, 628 F.3d 923 (7th Cir. 2010).

7th Circuit applies bodily injury increase where pepper spray victim felt burning sensation whenever she tried to wear contacts. (160) Defendant robbed a bank, and sprayed two tellers in the face with pepper spray. The district court applied a § 2B3.1(b)(3)(A) bodily injury enhancement based on the injury caused by the pepper spray. The PSR included a statement from one of the tellers that after the incident, she felt a burning sensation whenever she attempted to wear contact lenses, and had been unable to wear them. The Seventh Circuit affirmed the bodily injury increase. The judge did not apply the increase simply because defendant used pepper spray, but based his finding of bodily injury on the teller’s statement in the PSR, which he found sufficiently reliable. The judge determined that the victim had a painful and obvious injury, not simply because defendant used pepper spray. U.S. v. Maiden, 606 F.3d 337 (7th Cir. 2010).

7th Circuit says defendant who pointed gun and forced person to ground “otherwise used” the gun. (160) Defendant and four others committed a string of armed robberies. He pled guilty to two robberies and firearms charges. The district court applied a six-level increase under § 2B3.1 (b)(2)(B) for “otherwise using” a firearm because during one of the robberies, defendant hopped over the front counter and pointed his weapon at a store employee, forcing the employee to the ground. Defendant contended that his conduct only warranted a five-level enhancement for “brandishing” a firearm. The Seventh Circuit agreed with the district court that defendant’s act of pointing the weapon at a specific victim and forcing that victim to the ground created a personalized threat of harm warranting the “otherwise used” adjustment. U.S. v. Eubanks, 593 F.3d 645 (7th Cir. 2010).

7th Circuit says head wound that required four staples fell between bodily injury and serious bodily injury. (160) Defendant and four others committed a string of armed robberies. In one of the robberies, defendant and a co-defendant beat the store owner. Defendant hit the owner in the head with his BB gun, causing bruising and lacerations. The injuries required medical attention, including four staples to the victim’s head. The Seventh Circuit upheld a three-level increase under § 2B3.1(b)(3) for an injury between bodily injury and serious bodily injury. The court properly found that because the bruises and lacerations required medical attention, including four staples to close the head wound, and because the victim almost lost consciousness, the injury fell somewhere in the continuum between “bodily injury” and “serious bodily injury.” U.S. v. Eubanks, 593 F.3d 645 (7th Cir. 2010).

7th Circuit affirms that scratches and bruises from being dragged constituted bodily injury. (160) Defendant and four others committed a string of armed robberies. During the robbery of a jewelry store, defendant hopped over the front counter and forced a store employee to the ground at gunpoint. He then dragged a second store employee about six feet, from the back room of the store to the front room, causing minor injuries consisting of scratches and bruising. The Seventh Circuit upheld a two-level bodily injury enhancement under § 2B3.1. The district court examined an affidavit and a photo of the victim’s injuries, and found that the victim’s scrapes and bruises amounted to significant injures that were “painful and obvious.” The panel deferred to the district court on this fact-specific inquiry. U.S. v. Eubanks, 593 F.3d 645 (7th Cir. 2010).

7th Circuit rejects abduction increase for forcing store employee from one room to another. (160) Defendant and four others committed a string of armed robberies. The Guidelines provide for a four-level increase for abduction and a two-level increase for restraint of a victim. See § 2B3.1(b)(4). The district court applied a four-level abduction enhancement because in one of the robberies, a co-defendant forced an employee to the back of the store to retrieve a surveillance video. In another robbery, a victim was dragged less than six feet from the back room of the store to the front room. The Seventh Circuit held that on these facts, and taking into account the physical dimensions of the structure, transporting the victims from one room to another was not enough to warrant the abduction enhancement. While there might be situations in which an abduction enhancement is proper even though the victim remained within a single building, these facts were not present here. U.S. v. Eubanks, 593 F.3d 645 (7th Cir. 2010).

7th Circuit says increase for violating court order was improper double counting. (160) Defendant was convicted of willful failure to pay child support, in violation of the Deadbeat Parents Punishment Act of 1998, 18 U.S.C. § 228(a)(3) (DPPA). The applicable offense level is set by cross-reference to § 2B1.1 for theft, property destruction and fraud. U.S.S.G. § 2J1.1, Note 2. The Seventh Circuit agreed with defendant that an enhancement under § 2B1.1(b) (8)(C) for a violation of a court order was impermissible double counting, because defendant’s violation of the order was an element of the offense of conviction. A “support obligation” under the DPPA is defined as “any amount determined under a court order … to be due from a person for the support and maintenance of a child ….” Thus, violation of a judicial or administrative order is an element of the offense. Although some circuits apply a “separate harms” theory of double counting, which examines whether the conduct may be permissibly teased into severable “aspects” for purposes of sentencing, the Seventh Circuit has not embraced this theory. U.S. v. Bell, 598 F.3d 366 (7th Cir. 2010).

7th Circuit applies serious bodily injury increase where beating left prominent facial scars. (160) Defendant pled guilty to an assault that caused serious bodily injury. 18 U.S.C. § 1153. Section 2A2.2(b)(3) provides for a seven-level enhancement for battery that produces “permanent or life-threatening bodily injury” but only five levels for an attack that causes “serious bodily injury.” The victim broke her nose and the bone around her right eye, and had lacerations that a physician concluded would leave prominent facial scars. The definition of “permanent or life-threatening bodily injury” in Note 1 to § 1B1.1 includes “an obvious disfigurement that is likely to be permanent.” Defendant argued that an enhancement for a permanent disfigurement is only proper if the prosecution can prove that the condition cannot be corrected by plastic surgery. Here, the physicians opined that the victim’s prospects for cosmetic surgery could not be evaluated until her condition had stabilized in another year or so. The Seventh Circuit held that the victim’s prominent facial scars were a form of permanent disfigurement, thus meriting the enhancement for a permanent or life-threatening injury. Uncertainty does not preclude a finding of permanence. If an impairment has not been corrected by the time of sentencing, and will last for life unless surgically corrected in the future, then it should be treated as “permanent” under the guidelines. U.S. v. Webster, 500 F.3d 606 (7th Cir. 2007).

7th Circuit upholds bodily injury increase where beating victim needed nine stitches to head. (160) Defendant operated numerous gambling parlors and provided loans to patrons and others at high rates of interest. When borrowers could not meet these inflated terms, defendant would show up with various associates and gang members to forcibly demand payment. The Seventh Circuit affirmed a § 2E2.1(b)(2)(A) enhancement for bodily injury. Defendant conceded both in his brief and at oral argument that the beating of Ging Hong was sufficiently severe to require nine stitches to Hong’s head. Based on this incident alone, the district court did not err in applying the bodily injury increase. U.S. v. Dong Jin Chen, 497 F.3d 718 (7th Cir. 2007).

7th Circuit holds that fraud involving multiple ads over several months involved more than minimal planning. (160) With an offer of “Free Electricity for Life! Plus – the Opportunity to make $492,000 per year” and similar offers, defendant enticed at least 90 people to join his organization, the Christian Freedom Foundation. These offers were advertised in various editions of his Christian Freedom Chronicle. Victims paid $498.75 to join the Christian Freedom Foundation, but none of them received free electricity or any payments in excess of what they had paid to the organization. The Seventh Circuit upheld a two-level enhancement under § 2F1.1(b)(2)(A) for more than minimal planning. Defendant’s acts were not purely opportune. The activity spanned several months, during which time he drafted and printed four false advertisements, withdrew money from the bank accounts of his victims, and wrote and mailed checks to his victims under the guise of earnings. These actions were deliberate and made in such a way as to conceal the fraudulent scheme. U.S. v. Sloan, 492 F.3d 884 (7th Cir. 2007).

7th Circuit upholds physical restraint increase where robber forced teller at gunpoint from vault to teller drawer. (160) Defendant was convicted of bank robbery and related charges. The district court added two offense levels under § 2B3.1(b)(4) for physically restraining a person because defendant forced a teller from the bank’s vault to her teller drawer at the point of a gun. Note 1(K) to § 1B1.1 provides that “physical restraint” means the forcible restraint of the victim such as by being tied, bound or locked up. The Seventh Circuit affirmed. The phrase “such as” indicates that the words “tied, bound or locked up” are listed by way of example rather than limitation. Physical restraint is not present when an armed robber simply orders his victims not to move during an armed robbery. Something more is required, and that something was present here. Defendant, in the immediate presence of the teller, focused his gun on her and then, sustaining that focus, moved her out of the bank’s vault to her drawer against her will. The sustained focus of the weapon on the victim coupled with the compelled movement of the victim to another area constituted sufficient forcible restraint to warrant the enhancement. U.S. v. Carter, 410 F.3d 942 (7th Cir. 2005).

7th Circuit upholds serious bodily injury increase for lacerations, fractured eye socket, and nerve damage. (160) Defendant, a federal prisoner, was convicted assaulting a corrections officer. The officer received numerous blows to his head and face, resulting in cuts, bruises, tooth damage, and a fractured eye-socket. The district court found that the officer suffered a “serious bodily injury” and applied a four-level adjustment under § 2A2.1(b)(1)(B). Defendant admitted that the officer suffered lacerations requiring sutures, a fractured eye-socket, nerve damage to the left side of his face, ongoing emotional distress and migraine headaches, and the potential loss of three teeth, but contended that because the officer did not “undergo a prolonged hospital stay … or surgical intervention” that he did not suffer a serious bodily injury. The Seventh Circuit affirmed the increase, noting that previous cases have upheld a six-level adjustment for “permanent or life-threatening bodily injuries” where a defendant inflicted facial scars on the victim. U.S. v. Bogan, 267 F.3d 614 (7th Cir. 2001).

7th Circuit applies dangerous weapon increase for using clothes iron in assault. (160) Defendant, a federal prisoner, was convicted of charges relating to his assault on a corrections officer. He challenged a § 2A2.2(b)(2)(B) increase for the use of a dangerous weapon, pointing out that inmate Jackson testified that defendant only used his fists in the assault. However, Hilpipre, another inmate, clearly testified that defendant used a clothes iron to beat the officer, and a broken clothes iron was found at the scene. The sentencing judge resolves credibility questions that arise at sentencing, and here, she could properly choose to believe Hilpipre and the victim, and not Jackson. The Seventh Circuit found no reason to upset that credibility determination. Moreover, the government charged defendant with the use of a dangerous weapon as an element of the crime, and given the jury’s guilty verdict, the court’s finding to the same at sentencing could not be clearly erroneous. U.S. v. Bogan, 267 F.3d 614 (7th Cir. 2001).

7th Circuit holds that beaten woman left in the snow in rural area suffered “permanent or life-threatening injuries.” (160) Defendants hit their car-jacking victim five or six times on the head with “The Club,” a popular anti-theft device, and left her bleeding in the snow in a rural area. She managed to drag herself out of the ditch and flag down a UPS driver. By the time she reached the hospital, she had lost 2.5 pints of blood and needed 300 stitches to close the head wound, as well as a 1/4 inch drain inserted in her head. Although her skull was not fractured, the incident left her with long-term after-effects, including dizziness, difficulty concentrating and frequent severe headaches. The Seventh Circuit affirmed a § 2B3.1(b)(3) increase for permanent or life-threatening injury. The victim clearly was facing a “substantial risk of death.” See Note 1(h) to § 1B1.1. Had she not managed to get herself out of the ditch or the UPS driver had not seen her, or had driven by an hour later, it might have been too late to save her. Moreover, the beating permanently impaired the victim’s mental faculties. U.S. v. Williams, 258 F.3d 669 (7th Cir. 2001).

7th Circuit upholds more than minimal planning increase for eight-year embezzlement scheme. (160) Over an eight-year period, defendant embezzled money from the bank where he was employed. He concocted a scheme of issuing money orders from customer accounts without authorization and misappropriating cash entrusted to him by customers for deposit. The Seventh Circuit ruled that defendant’s repeated acts over an eight-year period supported a § 2F1.1(b)(2)(A) more than minimal planning increase. The district court was permitted to adopt the facts in the PSR, whose accuracy and reliability defendant did not contest. The court properly relied on the PSR alone in finding that defendant’s acts were not purely opportune but rather constituted evidence of more than minimal planning. The PSR described in detail defendant’s embezzlement scheme, involving hundreds of transactions, generally in $2000 to $3000 increments, into and out of ten bank accounts over more than eight years. Because defendant used his knowledge of bank operations to shape the pattern, frequency and amounts of his illegal transactions, his acts were not “purely opportune,” but instead deliberate and calculated to maximize his deception. U.S. v. Sonsalla, 241 F.3d 904 (7th Cir. 2001).

7th Circuit holds that facial scars of drive-by shooting victim constituted “permanent injury.” (160) Note 1(h) to § 1B1.1 defines “permanent or life-threatening bodily injury” as an “injury involving a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent; or an obvious disfigurement that is likely to be permanent.” The Seventh Circuit agreed with the district court’s findings that permanent and disfiguring scars on the face of a drive-by shooting victim constituted a “permanent or life-threatening bodily injury.” See § 2A2.2(b)(3)(C). The “permanent injury” need not be of the same magnitude or seriousness as a life-threatening injury and the disfigurement need not rise to the same level as a substantial impairment of a bodily function. “The plain language of application note 1(h) encompasses injuries that may not be terribly severe but are permanent, hence the disjunctive ‘permanent or life-threatening injuries.’“ U.S. v. Price, 149 F.3d 352 (5th Cir. 1998). U.S. v. Phillips, 239 F.3d 829 (7th Cir. 2001).

7th Circuit adopts objective standard for determining whether object appears to be dangerous weapon. (160) Defendant robbed three banks, in each case carrying a bag that he claimed to contain a bomb. Defendant argued that a § 2B3.1(b)(2)(E) dangerous weapon enhancement requires the presence of an actual weapon or an object that is designed to resemble a weapon. Under Note 2, the enhancement applies whenever a harmless object that “appeared to be a dangerous weapon” was brandished, displayed or possessed by the defendant. The Seventh Circuit held that an objective standard, not a subjective standard, should be used to determine whether a particular object appeared to be a dangerous weapon under § 2B3.1(b)(2)(E). The relevant question is whether a reasonable person, under the circumstances, would have regarded the object that the defendant brandished, displayed or possessed as a dangerous weapon. Here, defendant placed a package in front of the teller and warned that the package contained a bomb and that death was an imminent possibility. He intended to create the illusion that he possessed a bomb, and under the circumstances, his threats were credible. The packages he possessed were certainly capable of holding explosive devices, and the tellers had no way of knowing what they actually contained. There was no reason why a defendant who brandishes an object that reasonably appears to be, but is not, a dangerous weapon, should not received the increase merely because the object brandished did not have the intrinsic appearance of a dangerous weapon. U.S. v. Hart, 226 F.3d 602 (7th Cir. 2000).

7th Circuit upholds bodily injury increase despite lack of formal findings. (160) While robbing a bank, defendant struck one of the patrons in the chest with his forearm, fist and gun. The patron suffered a contusion on his chest, and was later hospitalized when he complained of chest pains. Defendant also pressed his gun into the back of a bank employee, and pushed her into the jamb of the vault door. The shove resulted in bruises to the employee’s hand, arm, and upper body. The Seventh Circuit held that the district court made sufficient finding to support a § 2B3.1(b)(3)(A) bodily injury enhancement. Although the court did not make formal, explicit findings of fact and did not specifically cite the evidence that it chose to credit, this level of detail is not necessarily required. There was no doubt that the court found defendants responsible for assaulting both the customer and the employee and further found that these assaults resulted in injuries that were sufficiently significant to justify the two-level enhancement. U.S. v. Ledford, 218 F.3d 684 (7th Cir. 2000).

7th Circuit holds that pulled neck muscle met definition of “bodily injury.” (160) During defendant’s bank robbery, a teller suffered a pulled neck muscle as a direct result of the robbers’ actions, sought medical attention, had x-rays taken of her neck, and was prescribed muscle relaxants for pain and discomfort. Note 1(b) to § 1B1.1 defines a “bodily injury” to mean “any significant injury; e.g. an injury that is painful or obvious, or is of a type for which medical attention ordinarily would be sought.” The Seventh Circuit agreed that the teller suffered a “bodily injury,” thus warranting a § 2B3.1(b)(3) (A) bodily injury enhancement. The teller’s neck injury was one which would ordinary necessitate medical attention, not only because an injured neck muscle is painful and warrants medical evaluation, but also to ensure that a more serious condition, such as a fractured vertebrae, did not exist. That is why the doctor ordered an x-ray of the teller’s neck and why she sought medical attention. U.S. v. Hargrove, 201 F.3d 966 (7th Cir. 2000).

7th Circuit applies injury enhancement to painful and obvious injury where no medical attention required. (160) Defendant and others invaded a home, bound up the residents, and held them at gunpoint. At sentencing, an FBI agent testified that Concepcion, a resident of the house, told him that defendant had struck him and kicked him, and the agent had independently observed a red welt on Concepcion’s forehead and indentations on his back that looked like the imprint of a shoe. The Seventh Circuit held that the agent’s testimony was sufficient to support a § 2B3.2(b)(4)(A) bodily injury enhancement. The agent’s testimony was corroborated by Concepcion’s and Cardona’s accounts of the incident. The Seventh Circuit further held that the § 2B3.2(b)(4)(A) enhancement can apply even if the injuries do not require medical attention, so long as there is evidence in the record showing that the injuries were painful and obvious. See note 1(b) to § 1B1.1 (defining bodily injury as “an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought.”) Concepcion’s red welts and the shoeprint mark on his back were painful and obvious, even if they did not require medical attention. U.S. v. Pandiello, 184 F.3d 682 (7th Cir. 1999).

7th Circuit applies more than minimal planning enhancement for repeated acts over three-year period. (160) Defendant formally changed his name via the Florida courts. Shortly thereafter, using his new name and a false date of birth and social security number, defendant began work at a pizza restaurant in Wisconsin. Two weeks into the job, he filed a personal injury claim alleging he had injured his knee at the restaurant. Defendant never told the insurance company of his former identity, never gave his proper birthdate or social security number, and denied any prior injuries. In fact, defendant had filed two separate workers’ compensation claims in Florida for work-related knee injuries. Over the next three years, defendant moved to Idaho and then to Florida. With each move, defendant requested and received the insurance checks at his new location. During this three-year period, he failed to keep several appointments for independent medical exams. When the insurance company threatened to suspend his disability payments, defendant complained that he was being harassed. The Seventh Circuit affirmed a more than minimal planning enhancement based on defendant’s repeated acts over a period of time that were not purely opportune. Defendant committed numerous acts over a three-year period to perpetrate and continue his fraud. U.S. v. De Angelo, 167 F.3d 1167 (7th Cir. 1999).

7th Circuit holds gun from which firing pin has been removed is a “firearm.” (160) Defendant attempted to rob a bank carrying a gun given to him by his putative getaway driver, an undercover police officer. Unbeknownst to defendant, the officer had removed the gun’s firing pin so that the gun would not operate. The Seventh Circuit held that a gun from which the firing pin has been removed is still a “firearm” under § 1B1.1 note (e) and § 2B3.1(b)(2)(C). A firearm is defined to include any weapon which will or is designed to or may readily be converted to expel a projectile by an explosive. Although a weapon originally designed to expel a projectile might reach a point at which it is no longer a firearm, that line is not crossed with the removal of the gun’s firing pin. Moreover, an alteration that renders a weapon inoperable cannot by itself remove the weapon from the guidelines’ firearm definition if the alteration does not preclude the weapon’s being “readily converted” to operability. “Readily converted” does not require the defendant possess the means to convert the weapon. U.S. v. Brown, 117 F.3d 353 (7th Cir. 1997).

7th Circuit says binding driver in back of truck, and driving truck to another state was abduction. (160) On two occasions, defendant entered a truck at gunpoint, bound the driver with duct tape, drove the truck to another state, unloaded the truck’s cargo, drove to another location, and abandoned both the truck and the bound driver. Defendant argued that this was physical restraint rather than abduction under § 2B3.1(b)(4). The Seventh Circuit upheld a § 2B3.1(b)(4)(A) enhancement for “abducting” the driver. The two options are not mutually exclusive, but gradations of aggravating conduct. Note 1(a) to § 1B1.1 defines “abducted” to mean that “a victim was forced to accompany an offender to a different location.” Although the victims were kept in their trucks, the vehicles were moved a considerable distance from their intended routes. The victims suffered the terror of being removed a significant distance. That movement facilitated the commission of the offense and further endangered the victims. U.S. v. Gall, 116 F.3d 228 (7th Cir. 1997).

7th Circuit finds more than minimal planning in insurance fraud with staged accidents. (160) Defendant participated in a conspiracy that staged auto accidents, made false medical claims, and then collected fraudulent insurance proceeds. The Seventh Circuit agreed that the scheme involved more than minimal planning. The staged auto accidents and elaborate follow-up with medical providers and insurance companies required far more planning than would be typical for a simple fraud, such as inflation of a claim after an actual accident. It made no difference that defendant may not have been involved in the pre-accident planning because the guidelines focus on the planning involved in the offense rather than on the planning done by the particular offender. Moreover, defendant was accountable for the foreseeable conduct of his co-conspirators. Defendant also took significant affirmative steps to conceal the offense and engaged in repeated acts over time. He made 15 visits to physicians, which assisted in concealing the fraud and substantiating the bogus personal injury claim. U.S. v. Green, 114 F.3d 613 (7th Cir. 1997).

7th Circuit holds that gun used to force kidnapping victim into car was “otherwise used”. (160) Defendant was involved in an armed kidnapping. The kidnappers forced the victim into a car and held him at gunpoint during a trip across state lines. The court imposed a § 2A4.1(b)(3) enhancement for use of a dangerous weapon. A dangerous weapon is used if a firearm is discharged or a dangerous weapon is “otherwise used.” Note 1(g) to § 1B1.10 defines “otherwise used” as more than brandishing, displaying or possessing a firearm. The Seventh Circuit agreed that the gun was “used” under § 2A4.1(b)(3). Brandishing means to shake or wave the weapon menacingly. There is a qualitative difference between pointing or waving a gun and leveling the weapon at the head of a victim with a specific threat that noncompliance will result in the discharge of the weapon. U.S. v. Hernandez, 106 F.3d 737 (7th Cir. 1997).

7th Circuit says repeated doctor visits to increase claim were more than minimal planning. (160) Defendant’s co‑conspirator staged a car accident, then defendant and three others entered the car, and pretended to be victims of a hit-and-run accident. All four received unnecessary emergency medical care at a nearby hospital and then retained the same attorney to file fraudulent claims with the insurance company. The Seventh Circuit agreed that defendant’s repeated doctor visits to increase the amount of her insurance settlement constituted more than minimal planning. Contrary to defendant’s suggestion, engaging in repeated acts to accomplish a single fraud is sufficient to constitute more than minimal planning. Moreover, defendant qualified for the enhancement on an alternate ground: her offense required more planning than is typical for commission of mail fraud in a simple form. U.S. v. Boatner, 99 F.3d 831 (7th Cir. 1996).

7th Circuit holds that detonators are destructive devices. (160) Defendant was convicted of various weapons violations after authorities discovered an assortment of guns, grenades, and detonators at his residence. The district court added six points under § 2K2.1(b) because the court found that his offense involved 50 or more “destructive devices.” Defendant argued that the detonators were not “destructive devices” and that the court should have applied § 2K1.3, which deals with “explosive materials” to determine his offense level. The Seventh Circuit held that the detonators were destructive devices and the court properly applied § 2K2.1 rather than § 2K1.3. The case cited by defendant, U.S. v. Cox, 7 F.3d 1458 (9th Cir. 1993), does not hold that § 2K1.3 is the appropriate guideline for defendant’s offense. A destructive device includes any explosive bomb or similar device. The detonators here were fully assembled devices, each containing a metal casing containing explosive powder and a fuse. Each detonator was capable of exploding and causing property damage and bodily injury. Thus, there was ample evidence to support a finding that the detonators were “bombs” or “similar devices.” U.S. v. Copus, 93 F.3d 269 (7th Cir. 1996).

7th Circuit holds that embezzlement of client’s funds involved more than minimal planning. (160) Defendant was an investment consultant who had the authority to order expenditures, investments and transfer funds entrusted to him by his clients. Defendant forged a signature to transfer funds belonging to a municipal pension fund into another account. When the city treasurer noticed the unauthorized transfers, defendant made up a fictitious story. When the year‑end audit revealed the discrepancy, defendant told the treasurer he had purchased two $100,000 certificates of deposit. He then prepared two documents directing a transfer of $200,000 to a bank, and added $15,000 (to simulate the interest a CD would earn) from another client’s account. He used the $215,000 to collateralize a loan to a company, and then transferred the money back to the original client. The Seventh Circuit agreed that defendant’s wire fraud involved more than minimal planning. Defendant committed repeated criminal acts over time and made substantial efforts to conceal them. He performed four fraudulent wire transfers over 11 months, provided seven months worth of false reports and made verbal assurances to the city treasurer to conceal the fraud. U.S. v. Viemont, 91 F.3d 946 (7th Cir. 1996).

7th Circuit says workers compensation fraud involved more than minimal planning. (160) Defendant injured his back at home one weekend. The following day, he and a co‑worker faked an accident so that defendant could file a worker’s compensation claim. Defendant’s wife joined her husband in filling out the forms, which falsely claimed that defendant hurt his back at work. The Seventh Circuit held that the worker’s compensation fraud scheme involved more than minimal planning under § 2F1.1(b)(2)(A). Defendant did more than exaggerate an otherwise valid claim. He staged an accident, and persuaded his wife and a co‑worker to back his claim. He exaggerated his injury to medical professionals, lied to insurance adjusters, filed a lawsuit against his employer based on the injury and testified falsely at the hearing. U.S. v. Bush, 79 F.3d 64 (7th Cir. 1996).

7th Circuit agrees that leasing of stolen trucks involved more than minimal planning. (160) Defendant and his associates ran a business that leased stolen trucks that had been furnished with new, fraudulent VIN numbers, re-titled and re-tagged. The Seventh Circuit approved a more than minimal planning enhancement under § 2B1.1 (b)(5). Defendant engaged in repetitive criminal acts over a period of time, and entered into two separate lease agreements. Defendant’s receipt of lease payments showed his control position and that he was involved in several different transactions involving both the leasing and the licensing aspects of the conspiracy. U.S. v. Brown, 71 F.3d 1352 (7th Cir. 1995).

7th Circuit agrees that union president’s kickback and fraud scheme involved more than minimal planning. (160) Defendant, the former president of a postal workers union, arranged with a finance company to set up a loan program for postal employees. The finance company used union office space and administrative personnel to operate the loan program. In return, the finance company kicked back money to defendant on each loan. Defendant also converted, for his own use, over $84,000 in “associate membership” fees that non-union employees were required to pay to obtain a loan. The Seventh Circuit agreed that the scheme involved more than minimal planning. Defendant engaged in a protracted course of conduct to conceal the actual nature of the kickbacks and fees given to him. He had the finance company issue checks to dormant non-personal bank accounts in which he was a signatory, proffered false statements to union members, and had cash fee receipts turned over to him for later destruction. He also had the union issue checks to cover his personal obligations. U.S. v. Briscoe, 65 F.3d 576 (7th Cir. 1995).

7th Circuit upholds more than minimal planning where lender required a series of smaller loans. (160) In an attempt to secure a government loan, defendant offered as collateral some electronic parts that his company owned in India. He manufactured invoices that falsely stated that the collateral was worth $321,000, when in fact it was only worth $89,581. Because the lender was skeptical, it decided to protect itself by using multiple loan closings and making several smaller loans. In each of four transactions, defendant completed identical paperwork, making the same misrepresentation. Defendant challenged a more than minimal planning enhancement for “repeated acts,” arguing that he only misrepresented the value of the collateral once and should not be accountable for repeated acts simply because the lender chose to issue four separate loans. The Seventh Circuit upheld the enhancement because defendant committed more than two acts. He misrepresented the value of the collateral on four separate occasions. The guidelines permit enhancement for this additional conduct. U.S. v. Channapragada, 59 F.3d 62 (7th Cir. 1995).

7th Circuit says defendant cannot avoid more than minimal planning increase by having agent do the work. (160) Defendant instructed his horse trainer to “do what you have to do” to make an unproductive show horse “disappear” so that defendant could collect insurance proceeds. The trainer hired a professional horse killer. The killer transported the horse to another city and killed the horse by electrocution. Defendant reported to his insurance company that the horse was found dead in its stall and the company sent him $50,000. Defendant challenged a more than minimal planning enhancement, arguing that all he did besides mail the claim was instruct the trainer to get rid of the horse. The Seventh Circuit affirmed the enhancement based on the actions of defendant’s subordinates–a criminal cannot avoid the more than minimal planning enhancement by operating through underlings. The enhancement focuses on the planning involved in the offense rather than on the planning done by the particular offender. U.S. v. Levinson, 56 F.3d 780 (7th Cir. 1995).

7th Circuit upholds more than minimal planning increase for possessing 73 stolen checks. (160) Defendant was involved in a stolen check cashing operation. The Seventh Circuit agreed that the offense involved more than minimal planning under § 2B1.1(b)(5)(A). Defendant was found in possession of 73 checks belonging to a number of individuals. The checks were the result of repeated mail thefts. Moreover, defendant sought and obtained the assistance of at least two other individuals to help in the scheme. U.S. v. Woody, 55 F.3d 1257 (7th Cir. 1995).

7th Circuit says car used to assault police was a dangerous weapon. (160) When postal inspectors attempted to arrest defendant, he drove his car at them, hitting one inspector on the knee and forcing another inspector to jump out of the way to avoid being hit. Defendant was convicted of two counts of assaulting federal law enforcement officers. The Seventh Circuit upheld a dangerous weapon enhancement under § 2A2.2(b) (2)(B). Under note 1(d) to § 1B1.1, a car can be used as a dangerous weapon because it is an instrument capable of inflicting death or serious bodily injury. Defendant knew that the men approaching his car were law enforcement officers trying to arrest him. He nonetheless accelerated directly toward them. Defendant’s actions fit squarely within the guidelines’ adjustment for use of a dangerous weapon. In addition, there was substantial evidence to support the characterization of defendant’s assault as aggravated under note 1 to § 2A2.2. U.S. v. Woody, 55 F.3d 1257 (7th Cir. 1995).

7th Circuit holds gunshot wound that fractured victim’s fibula was serious bodily injury. (160) As part of an extortion plot, defendant shot the victim in the leg, fracturing his fibula and leaving entry and exit wounds. The victim was hospitalized for over two days and his lower leg was placed in a cast. The Seventh Circuit agreed that the gunshot wound constituted a serious bodily injury under note 1(j) to § 1B1.1. U.S. v. Johnson-Dix, 54 F.3d 1295 (7th Cir. 1995).

7th Circuit holds that bankruptcy fraud involved more than minimal planning. (160) Defendant pled guilty to bankruptcy fraud after failing to disclose assets to the bankruptcy trustee, failing to disclose the receipt of proceeds from the sale of assets, lying about one of the disclosed assets, and using money from his business to pay his personal bills. The Seventh Circuit agreed that the fraud involved more than minimal planning under § 2F1.1(b)(2). Defendant engaged in a protracted course of conduct which served to conceal assets from both the bankruptcy trustee and his creditors for over four years. When he sold the concealed assets, he planned the transactions to avoid detection. He also carefully monitored the cash level of his store and siphoned proceeds whenever he thought balances were too high. Finally, he presented two false documents to the trustee about the value of a disclosed asset, including a phony appraisal written on an appraisal company’s stationary. Moreover, he engaged in a scheme to defraud more than one victim—the bankruptcy trustee and defendant’s creditors. U.S. v. Michalek, 54 F.3d 325 (7th Cir. 1995).

7th Circuit agrees that mail fraud involved more than minimal planning. (160) Defendants engaged in a fraudulent “Ponzi” scheme. They pled guilty to a single count of mail fraud based on a mailing to one investor. The Seventh Circuit agreed that the fraud involved more than minimal planning. Defendants sought out investors, sold shares in various properties they did not own, and used this fresh money to pay dividends to previous investors. The scheme was complicated, involving repeated acts over a long period of time, and the duration and nature of the Ponzi scheme entailed careful planning. Even if the mailing that was the subject of the offense of conviction was “simple,” the indictment also charged that the mailing was part of defendants’ scheme to defraud. U.S. v. Brown, 47 F.3d 198 (7th Cir. 1995).

7th Circuit holds that check kiting scheme involved more than minimal planning. (160) Defendant kited numerous checks between three different bank accounts over a seven-month period. He argued that an enhancement under § 2F1.1(b)(2)(A) for more than minimal planning was improper because the district court focused on the number and dollar amount of the checks he kited and on his level of sophistication, rather than on the offense itself. The Seventh Circuit upheld the enhancement. The volume and face amount of the checks, combined with defendant’s business experience, tended to prove that the kiting was not “purely opportune.” The district court properly considered these factors under § 2F1.1 and no additional evidence of more extensive planning was necessary. U.S. v. Mau, 45 F.3d 212 (7th Cir. 1995).

7th Circuit agrees that possession of stolen property involved more than minimal planning. (160) Defendant pled guilty to possessing stolen goods (zinc) that had crossed a state boundary. The Seventh Circuit agreed that the offense involved more than minimal planning. The district court considered the number of phone calls, the arrangements that were made to have the materials delivered to Wisconsin, the numerous discussions with a man who was familiar with the pricing of metal, the negotiations to sell the zinc, the actual selling of the zinc, and the attempted plan to have the funds disbursed. The fact that the district court once used the word “simplest” instead of “simple” did not show it applied the wrong standard in assessing what constitutes more than minimal planning. U.S. v. Leblanc, 45 F.3d 192 (7th Cir. 1995).

7th Circuit rules custodian who learned location of food stamps engaged in more than minimal planning. (160) Defendant, a contract custodian, stole food stamps from a branch post office. The Seventh Circuit agreed that the thefts involved more than minimal planning. Defendant engaged in a fair amount of information gathering before executing the thefts. As custodian, he would not normally have known where the food stamp envelopes were kept. However, he entered the post office on two occasions and headed directly for the stamps. Thus, defendant took the time before the thefts to learn where the food stamps were located. Defendant’s actions were analogous to a thief who obtains information on delivery dates so that he can steal an especially valuable item. U.S. v. Harrison, 42 F.3d 427 (7th Cir. 1994).

7th Circuit agrees that theft of trailer and resale of stolen goods involved more than minimal planning. (160) Defendant and an associate stole a trailer containing $70,000 worth of hot dogs from a truck stop. They resold the hot dogs the next day and abandoned the trailer in another city. The Seventh Circuit agreed that the theft involved more than minimal planning. The abbreviated time span in which the activities took place evidenced pre-planning. In addition, the various steps taken to conceal the thefts justified the enhancement. Defendant tried to remove an identifying decal from the stolen trailer. On the day of the sale, defendant and his associate traveled to a relatively distant city to dispose of the stolen trailer. Also, to conceal the theft, defendant helped create a forged receipt documenting the sale, which he faxed to the buyer. U.S. v. Lewis, 41 F.3d 1209 (7th Cir. 1994).

7th Circuit upholds finding that tellers were physically restrained by mace. (160) Defendant robbed several banks. She argued that the sentencing court erred in enhancing her sentence under section 2B3.1(b)(4)(B) for physically restraining the tellers by spraying mace. The 7th Circuit upheld the enhancement. Because a person experiencing burning in her eyes and throat may have difficulty chasing after a bank robber and will be restricted in movement for some period of time, “physical restraint” was satisfied here. The defendant created a “chemical wall” that physically restrained the victims. U.S. v. Robinson, 30 F.3d 774 (7th Cir. 1994).

7th Circuit agrees that mace caused bodily injury. (160) Defendant received an enhancement under section 2B3.1(b)(3)(A) for bodily injury because in two bank robberies, she sprayed the tellers with mace. The 7th Circuit upheld the enhancement. The bank tellers who were sprayed experienced pain which lasted for hours and had some residual effect for days. The district court could properly find that this was painful and obvious. The case in which the 4th Circuit upheld a finding of no bodily injury after a mace spraying was distinguishable, since the victim there testified that the effects of the mace were only momentary, and the appellate court deferred to the factual findings made by the district court. U.S. v. Robinson, 30 F.3d 774 (7th Cir. 1994).

7th Circuit says concealed toy gun is dangerous weapon. (160) Defendant committed six bank robberies. She received an enhancement under section 2B3.1(b)(2)(E) for possessing a “dangerous weapon” which was actually only a toy gun. She argued that “possession” means the possession was “in a manner that aided or facilitated the robbery.” The 7th Circuit rejected this interpretation. It would equate possession and brandishing. In addition, it would mean that if the weapon was concealed it would have to be real to earn the enhancement, since a concealed toy gun obviously could not “appear” to be a real weapon since no one would actually see it. The fact that the gun was concealed, and thus could not have instilled fear in the victim, did not mean it was not a dangerous weapon. The statutory definition of dangerous weapon and the guidelines definition are not truly analogous. U.S. v. Robinson, 30 F.3d 774 (7th Cir. 1994).

7th Circuit agrees that numerous embezzlements involved more than minimal planning. (160) Over a five-year period defendant embezzled $2.4 million from her employer. The 7th Circuit upheld a more than minimal planning enhancement under section 2F1.1(b)(2), despite defendant’s claim that she did not have an organized plan. Because defendant engaged in several instances of taking money, each accompanied by false book entries, the enhancement was clearly appropriate. U.S. v. Panadero, 7 F.3d 691 (7th Cir. 1993).

7th Circuit says conspiracy to fraudulently receive public assistance benefits involved more than minimal planning. (160) Defendant participated for four months in a conspiracy to fraudulently receive public assistance benefits. The conspiracy was organized by someone else and spanned a period of seven years. The 7th Circuit affirmed an enhancement for more than minimal planning, under section 2B1.1(b)(5). Defendant directed a female confederate to take forged birth certificates to the Social Security office and obtain cards for herself and two fictitious children. He then directed her to apply for public aid, using defendant’s home address. Only after this preparation did defendant and his confederate begin to profit from their scheme by receiving checks and food stamps. The fact that defendant used his real address was outweighed by facts showing premeditation and repeated criminal activity. The fact that others organized the scheme was relevant to defendant’s role, not the nature of the offense. U.S. v. Moore, 991 F.2d 409 (7th Cir. 1993).

7th Circuit remands for reconsideration of whether defendant committed repeated acts over a period of time. (160) Defendant was arrested in possession of three stolen motor vehicles. The district court imposed an enhancement for more than minimal planning under section 2B1.2(b)(4)(B), finding that defendant committed “repeated acts” because he possessed three separate vehicles. It also found that these acts took place “over time” because defendant possessed them on the date of his arrest, and therefore must also have possessed all three vehicles prior to that date. The 7th Circuit remanded for reconsideration of whether defendant committed repeated acts over a period of time. Just because defendant had all three vehicles in his possession at his arrest did not mean that he also must have possessed them before that date. In addition, the court inferred that defendant had committed repeated acts simply because he possessed three vehicles, without determining whether the vehicles were obtained on one occasion or several. U.S. v. Nafzger, 974 F.2d 906 (7th Cir. 1992).

7th Circuit requires enhancement where planning was more than “minimal” even if it was “typical.” (160) Defendant maintained two checking accounts. He purchased some stock, paying his brokerage house with a bad check drawn against one of his accounts. The next day he deposited into the first account a bad check drawn on his second account. Later, he deposited a check drawn on the first account into the second account. He continued this check kiting scheme for one month until he was caught. The 7th Circuit reversed the district court’s determination that the offense did not involve more than minimal planning under 2F1.1(b)(2)(A). The court was willing to defer to the district court’s determination that the offense did not involve more planning than is typical for the offense. However, the enhancement is also proper if the offender’s crimes involved “repeated acts over a period of time, unless it is clear that each instance was purely opportune.” Drafting 40 checks during a single month, few if any of which appeared to be purely opportune, fit this profile. U.S. v. Doherty, 969 F.2d 425 (7th Cir. 1992).

7th Circuit affirms that ticket broker’s purchase of stolen strips of World Series tickets involved more than minimal planning. (160) Defendant, a ticket broker, arranged to purchase 30 strips of tickets to the post-season games of the Minnesota Twins, which the seller was going to steal from the Twins’ vault. Over the course of two weeks, defendant and the seller negotiated the details of the delivery and sale in a series of telephone conversations. To reduce his risk in the event the Twins did not play a sufficient number of games, defendant made plans to travel to Las Vegas to bet against the Twins. He purchased 30 different money orders in the amount of $1,000 apiece to protect himself from theft and to allow him to buy fewer strips if the seats were not as promised. The 7th Circuit affirmed that the offense involved more than minimal planning. The extended phone conversations, plans to reduce the risk in Las Vegas, and the purchase of 30 money orders prior to a carefully arranged meeting showed that this was not a spur of the moment deal. U.S. v. Mount, 966 F.2d 262 (7th Cir. 1992).

7th Circuit reverses determination that security guard’s two bank thefts involved more than minimal planning. (160) Defendant, a security guard at a bank, stole money from the night depository on two different occasions. The second theft occurred after defendant accidentally set off one of the alarms. The 7th Circuit reversed an enhancement for more than minimal planning. Defendant’s offenses did not involve more planning than typical. The fact that in both thefts defendant deactivated the alarm was not significant since deactivating the alarm was part of his ordinary duties. Defendant did not commit repeated acts over a period of time. The appellate court found no cases where the enhancement was applied to fewer than three repeated acts. Finally, defendant did not do anything extraordinary to conceal his crime. When the enhancement has been applied based on significant steps to conceal an offense, evidence of some pre-offense planning of the concealment has been present. Here, there was no evidence of any advance planning of defendant’s efforts at concealment. U.S. v. Maciaga, 965 F.2d 404 (7th Cir. 1992).

7th Circuit affirms that firearms offenses involved more than minimal planning. (160) After a bar owner ejected defendant from his bar and took defendant’s gun, defendant returned to the bar later that night with a stolen assault weapon. The 7th Circuit affirmed an enhancement for more than minimal planning. Defendant planned his return to the bar with care, not only arming himself “to the teeth” but modifying the assault weapon by changing barrels. Hoping to escape detection, he also switched cars. U.S. v. Smith, 953 F.2d 1060 (7th Cir. 1992).

7th Circuit affirms that attempt to obtain fraudulent loans involved more than minimal planning. (160) The 7th Circuit affirmed the district court’s finding that defendant’s bank fraud scheme involved more than minimal planning. Defendant committed repeated acts over several weeks, including obtaining credit for an automobile by a falsified application, subsequently tendering a no-funds check in an effort to secure release of the automobile, seeking a $250,000 loan by another falsified application, lowering the amount sought in order to expedite the loan, and writing $4,400 in checks on a $100 account. U.S. v. De Felippis, 950 F.2d 444 (7th Cir. 1991).

7th Circuit affirms enhancement for both more than minimal planning and leadership of “otherwise extensive” criminal activity. (160) Defendants conducted a massive mail fraud scheme. The district court enhanced defendants’ offense level by two under guideline § 2F1.1(b) (2) for more than minimal planning and by four points under guideline § 3B1.1(a) for their roles as leaders of criminal activity that was “otherwise extensive.” The 7th Circuit rejected defendants’ claim that this constituted impermissible double counting. The “otherwise extensive” language applies to the number of the people involved in the operation, not the extent of the criminal activity. The purpose of § 3B1.1 is to increase the sentence due to a defendant’s leadership role in an offense, not because the nature of the offense itself. Moreover, § 2F1.1(b)(2) allows for a two-point enhancement for either more than minimal planning or when the scheme to defraud involves more than one victim. Thus, defendants’ offense level could have been increased by two levels regardless of their degree of planning, simply because there were 3,000 victims in their scheme. U.S. v. Boula, 932 F.2d 651 (7th Cir. 1991).

7th Circuit finds false claim of gun ownership involved more than minimal planning. (160) Defendant was the business partner of a man charged with possession of a firearm by a felon. After the partner’s arrest, defendant approached the man who sold the gun to the partner, advised the seller that the partner had actually purchased the gun on defendant’s behalf, and obtained a receipt. Defendant then employed an attorney who wrote to the police and requested that the weapon be returned to defendant since it belonged to defendant, not the partner. Defendant was later approached by government agents and advised them that he was the owner of the gun. Defendant was convicted of making a false statement to a federal agent, and received a sentence enhancement under guideline § 2F1.1(b)(2)(A) for more than minimal planning. The 7th Circuit upheld the enhancement, finding that defendant’s establishment of a paper trail removed his conduct from the ambit of “simple” perjury. U.S. v. Lennick, 917 F.2d 974 (7th Cir. 1990).

7th Circuit determines that obtaining and using multiple forms of false identification involved more than minimal planning. (160) Defendant obtained numerous false identification cards, which she then used to open a bank account. She also provided the bank with a false social security number, birth date and address. Defendant contended that her offense did not involve more than minimal planning because she did not select any particular bank or any particular employee to mislead, did not request temporary checks or open multiple accounts, and provided only random numbers and dates as her purported social security number and birth date. The 7th Circuit rejected this argument, noting that defendant had obtained the false state-issued identification after a different bank had earlier rejected her application to open an account, due to her lack of proper identification. Moreover, forethought and planning were required to obtain the false identification. U.S. v. Ojo, 916 F.2d 388 (7th Cir. 1990).

7th Circuit upholds adjustment for “more than minimal planning” in automobile theft. (160) Defendant denied that he had any real plan, arguing that he simply stole the car from the kidnap victim when the opportunity arose. The 7th Circuit rejected the argument, upholding the district court’s conclusion that the combination of kidnapping and theft to facilitate an escape and the rather elaborate theft scheme were sufficient to support the conclusion that defendant’s theft of the automobile involved more than minimal planning under § 2B1.1(b)(4). U.S. v. White, 903 F.2d 457 (7th Cir. 1990).

8th Circuit applies physical restraint increase for placing bank employees in unlocked vault. (160) Defendant and an accomplice robbed a bank at gunpoint. Before leaving the bank, defendant marched the employees to the bank’s vault, cut the line to a phone located in the vault, and then closed the vault door. As he was closing the door, defendant inquired whether the employees would be able to breathe, and after receiving an affirmative answer, he closed the vault door. Defendant challenged a § 2B3.1(b) (4)(B) enhancement for physical restraint, noting that the bank door was never locked, and the victims easily could have freed themselves. The Eighth Circuit upheld the physical restraint increase. Defendant and his accomplice entered the bank armed with guns and issued threats of imminent bodily harm for non-compliance with their demands. Defendant’s subsequent actions, including cutting the phone line, moving a ramp that was blocking the vault door, and ensuring the victims would not suffocate, demonstrated to the victims his intent for them to remain in the vault. The gun and threats ensured the employees would comply. U.S. v. Stevens, 580 F.3d 718 (8th Cir. 2009).

8th Circuit affirms dangerous weapon increase for small knife carried by defendant during drug purchase. (160) The district court found that the knife that defendant possessed during the drug offense was a dangerous weapon, and applied a § 2D1.1 enhancement. Defendant argued that the increase was improper because the knife was small, dull, and incapable of inflicting serious injury. However, a knife is a dangerous weapon when used in connection with criminal conduct. Defendant placed the knife where he could easily reach it and where it was visible to the confidential informant. He carried it both when he met the informant to arrange the drug purchase, and again when the buy occurred. Although defendant’s knife was only one-and-a-half to two inches long, the district court did not commit error when it concluded that the knife was dangerous and was likely “connected with the offense.” See Note 3 to § 2D1.1. U.S. v. Mathijssen, 406 F.3d 496 (8th Cir. 2005).

8th Circuit holds that logger who wrongfully diverted timber engaged in more than minimal planning. (160) Defendant contracted to cut and haul timber for several different landowners. Defendant was to deliver the timber to specific mills, but diverted some of the loads to unauthorized mills and disguised the source of the timber. As a result of the scheme, defendant received in excess of $350,000. The Eighth Circuit held that the district court did not commit plain error when it imposed a two-level increase for more than minimal planning. Defendant’s scheme required considerable effort, including taking loads to multiple mills and issuing landowners fraudulent scale tickets, over an extended period of time. U.S. v. Wainright, 351 F.3d 816 (8th Cir. 2003).

8th Circuit says scar from removal of bullet and presence of bullet in body was “permanent” bodily injury.” (160) In a § 2255 motion, defendant argued that he improperly received a four-level increase under § 2A2.1(b)(1) (A) for “permanent or life threatening bodily injury.” In rejecting the argument, the Eighth Circuit noted that the argument was beyond the scope of the district court’s remand and could have been raised in defendant’s first appeal. In any event, the contention failed. The victim’s permanent scar from removal of a bullet from his neck and the presence of a bullet inside his body supported the permanent injury enhancement. U.S. v. Miner, 345 F.3d 1004 (8th Cir. 2003).

8th Circuit holds that rape victim who was hospitalized suffered serious bodily injury. (160) Defendant sexually assaulted a woman who had passed out on his bed. The victim suffered a rectal laceration that needed to be repaired at the hospital; she compared the pain of having defendant’s fist in her vagina to the pain of giving birth; her scalp was bruised by him restraining her by her hair; and she was hospitalized overnight. The Eighth Circuit upheld a serious bodily-injury enhancement under § 2A3.1(b)(4)(B). The victim’s description of the pain she experienced qualified as “extreme physical pain” within the meaning of Note 1(i) to § 1B1.1. Her overnight hospitalization also qualified as “medical intervention” within the meaning of that note. The victim’s rectal laceration was akin to types of serious bodily injury recognized in aggravated sexual abuse cases. See, e.g. U.S. v. Kills in Water, 293 F.3d 432 (8th Cir. 2002). U.S. v. Long Turkey, 342 F.3d 856 (8th Cir. 2003).

8th Circuit says 14-year old rape victim who became pregnant, had difficult delivery, and suffered stress disorders suffered serious bodily injury. (160) Defendant raped a 14-year old babysitter, who became pregnant and gave birth as a result. The district court applied a two-level enhancement under § 2A3.1(b)(4) for serious bodily injury. On appeal an Eighth Circuit panel concluded that the court had erred by basing the increase on a provision in Note 1(j) to § 1B1.1 deeming serious bodily injury to occur where the conduct constituted criminal sexual abuse, but ruled that the record was incomplete as to the other definitions of serious bodily injury in the note. On remand, the district court reimposed the same sentence after making specific findings basing the enhancement for serious bodily injury on extreme physical pain, protracted impairment, and the necessity for medical intervention. The Eighth Circuit ruled that the extensive findings made by the district court on remand supported the increase. The victim suffered extreme physical pain during her labor and delivery, which was made difficult by her small frame, and resulted in severe hemorrhaging. Her depression and post-traumatic stress disorder were well documented and lasted from the time of the rape in October 1999 until at least March 2001, constituting a protracted impairment of the function of her mental faculty. U.S. v. Guy, 340 F.3d 655 (8th Cir. 2003).

8th Circuit says holding knife against victim’s leg to induce cooperation was “use” of dangerous weapon. (160) Armed with a knife, defendant entered a car occupied by a mother and her 10-month old daughter and made the mother drive them from Missouri to Arkansas. He challenged a § 2A4.1(b)(3) enhancement for “using” a dangerous weapon, claiming he merely “brandished” or “displayed” the knife. However, the mother testified under oath that when defendant entered the car, he had a knife in his left hand which he placed on her leg and said, “don’t say anything just drive.” When they stopped at a gas station and she balked at leaving the car to pump gas, defendant pointed the knife at her infant daughter and said, “you don’t care about her either, you don’t care about your daughter?” In the context of a § 2B3.1(B)(2)(d) enhancement, the court has held placing a knife against a person’s throat to facilitate cooperation with a robbery constituted use of a dangerous weapon. Likewise, the Eighth Circuit concluding that defendant’s holding a knife against the mother’s leg to facilitate her cooperation with the carjacking constituted use of a dangerous weapon. This conclusion was reinforced by defendant’s later act of pointing the knife at the baby to secure the mother’s cooperation. U.S. v. Coyle, 309 F.3d 1071 (8th Cir. 2002).

8th Circuit finds abduction where victim voluntarily went to trailer but defendant forced her inside. (160) Defendant pled guilty to aggravated sexual abuse, in violation of 18 U.S.C. §§ 2241(a)(1), and received a § 2A3.1(b)(5) enhancement for abducting the victim. Note 1(a) to § 1B1.1 explains that abduction “means that a victim was forced to accompany an offender to a different location.” Defendant argued that the victim voluntarily accompanied him to the trailer where the rape occurred. However, the district court made a specific factual finding that, although the victim was not forced to accompany defendant to the trailer, defendant forced her inside the trailer. Moreover, the force used by the defendant to get the victim inside the trailer included chasing her, picking her up by the waist, dragging her to the trailer, and lifting her up stairs and inside the trailer, despite her resistance. In drawing this conclusion, the court reasonably relied on the testimony of the pretrial services officer, who reviewed the FBI and police reports and interviewed the victim, defendant, and co-defendant. The Eighth Circuit held that the district court did not clearly err in determining that defendant forced the victim into the trailer just prior to the rape. These actions constituted an abduction within the meaning of the guidelines. U.S. v. Kills in Water, 293 F.3d 432 (8th Cir. 2002).

8th Circuit upholds serious bodily injury enhancement. (160) Defendant participated in an extensive interstate conspiracy involving the recruitment, transportation, control and abuse of prostitutes. The district court applied a § 2A3.1(b)(4)(B) enhancement due to the serious bodily injury to one of the prostitutes. “Serious bodily injury” is defined as “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.” See Note 1(j) to § 1B1.1. The injuries suffered by one prostitute included breaking her wrist with a boot, dislocating her shoulder, and a bloody attack on her head with an object, for which she was taken to a hospital, and which left her with cuts and bruises. The Eighth Circuit held that the district court did not err in applying the serious bodily injury increase. U.S. v. Evans, 285 F.3d 664 (8th Cir. 2002).

8th Circuit says “deeming provision” cannot support bodily injury increase for criminal sexual abuse defendant. (160) Defendant pled guilty to criminal sexual abuse under 18 U.S.C. § 2241(c) for forcibly raping a 14-year old girl. The district court applied a § 2A3.1(b)(4)(B) increase for serious bodily injury to the victim. Application note 1(j) to § 1B1.1 defines “serious bodily injury” as “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty…. In addition ‘serious bodily injury’ is deemed to have occurred if the offense involved conduct constituting criminal sexual abuse under 18 U.S.C. § 2241 or § 2242 ….” However, the commentary to § 2A3.1 provides that serious bodily injury means “conduct other than criminal sexual abuse, which already is taken into account in the base offense level under subsection (a).” The Eighth Circuit concluded that the deeming provision, in combination with the restriction in § 2A3.1, was intended to make the serious bodily injury increase automatically available if the offender’s conduct underlying his conviction for another type of offense also involved criminal sexual abuse. A court cannot, as the court did here, use the deeming provision to increase the sentence for a defendant convicted of criminal sexual abuse. Although the court also rested its enhancement on the victim’s “protracted impairment,” the court failed to make specific factual findings, and the case was remanded. U.S. v. Guy, 282 F.3d 991 (8th Cir. 2002).

8th Circuit holds that larceny of store 12 miles away involved more than minimal planning. (160) Defendant stole American Indian merchandise from a trading post located in a town 12 miles from his residence. Because he had no access to a car, he walked the 12 miles to the town carrying a large backpack containing a hammer. After committing the crime, he walked the 12 miles back and hid the stolen merchandise in an abandoned home near his residence. The Eighth Circuit found numerous facts supporting a more than minimal planning enhancement. These included defendant’s forethought in committing the larceny; his 12-mile walk for that purpose; his plan to use a large backpack and hammer to commit the larceny; his circumvention of the bars on the first floor doors and windows of the store by climbing a tree and then clawing an opening in the siding; and his act of hiding the stolen merchandise. Defendant took discrete steps in furtherance of his plan before he actually stole the merchandise and took another affirmative step after committing the larceny to conceal the offense. U.S. v. Young, 272 F.3d 1052 (8th Cir. 2001).

8th Circuit says encasing four-year old sexual abuse victim in pillow case constituted physical restraint. (160) Defendant was convicted of producing and possessing child pornography. The pornographic material included ten tapes that documented defendant’s sexual abuse of a four-year old girl who spent the night at his house once a week. The Eighth Circuit upheld a § 3A1.3 enhancement for victim restraint based on a tape that showed the child entirely encased in a pillow case. A victim so encased is at least as restrained as one who is tied. The panel rejected defendant’s argument that the victim’s participation was “willing.” U.S. v. Hampton, 260 F.3d 832 (8th Cir. 2001).

8th Circuit rules concealed fake gun never “appeared” to be brandished or possessed during robbery. (160) During his bank robbery, defendant had an inoperable replica of a western-styled revolver concealed out of sight in the waist bank of his pants. Prior to its November 2000 amendment, USSG § 2B3.1(b)(2)(E) provided for a three-level enhancement if defendant was convicted of a bank robbery in which “a dangerous weapon was brandished, displayed, or possessed.” Note 2 stated that when “an object that appeared to be a dangerous weapon was brandished, displayed or possessed,” the object should be treated as a dangerous weapon.” (emphasis added) See also Note 1(d) to § 1B1.1. Defendant argued that because he never removed the fake gun from his waistband during the robbery, it never “appeared” to anyone in the bank that he had a dangerous weapon. The Eighth Circuit agreed that the word “appeared” was ambiguous, and applying the rule of lenity, rejected the enhancement. The word “appeared” in the commentary suggests that the object must have been perceived by someone during the commission of the robbery as a dangerous weapon. However, under November 2000 version, it is clear than an object that looks like a dangerous weapon may warrant the enhancement if it is possessed during a robbery, even if it is never seen by anyone. U.S. v. Hutton, 252 F.3d 1013 (8th Cir. 2001).

8th Circuit agrees that two false credit applications and 8 jewelry purchases was more than minimal planning. (160) Defendant submitted two fraudulent credit applications under two different names with a jewelry store. Through the fraudulent accounts, defendant made eight separate purchases of jewelry with a total value of $109,180. He made only a single $100 payment on the accounts and the jewelry was never recovered. The Eighth Circuit affirmed a more than minimal planning increase for making false financial statements, opening credit accounts under two different names, and making eight separate jewelry purchases. The fact that the jewelry store kept sending jewelry ordered by defendant or an agent on the fraudulent accounts and that defendant kept accepting the jewelry without making payment did not create a “purely opportune” circumstances. Instead, it indicated criminal actions by design. U.S. v. Lim, 235 F.3d 382 (8th Cir. 2000).

8th Circuit says unloaded gun qualifies as “firearm.” (160) Defendant acted as the getaway driver in two bank robberies. The robber who entered the bank carried a pistol with him on both occasions. Defendant challenged a § 2B3.1 enhancement for using a firearm during the robbery, contending that the gun was not loaded on either occasion, and that he knew this. The Eighth Circuit held that it was not relevant whether the gun was loaded. Note 1(e) to § 1B1.1 defines a firearm as any weapon “which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” A gun in which a bullet can be loaded, and which is then capable of shooting the bullet, constitutes a firearm. The .25 caliber semi-automatic pistol used in this case fit the definition whether it was loaded or not. U.S. v. Christmann, 193 F.3d 1023 (8th Cir. 1999).

8th Circuit applies dangerous weapon enhancement for possession of brass knuckles. (160) The district court applied a § 2D1.1(b)(1) dangerous weapon enhancement for defendant’s possession of brass knuckles. The Eighth Circuit held that (1) brass knuckles are dangerous weapons under note 1(d) to § 1B1.1, (2) defendant possessed the brass knuckles, (3) the possession was in connection with defendant’s drug trafficking activities. The police arrested a co-conspirator in room 207 of a hotel. The police found the brass knuckles in the pocket of a green coat in room 207. The police had previously observed defendant leaving room 207, and two conspirators testified that defendant owned the green coat. Other items found in the coat, including a hotel key, a business card, and a note to defendant, suggested that the coat belonged to defendant. At the time in question, defendant was attempting to obtain drugs and collect outstanding drug debts. U.S. v. Guel, 184 F.3d 918 (8th Cir. 1999).

8th Circuit applies bodily injury enhancement for red, puffy face and black eye. (160) Defendant attacked a girl, took her car keys, and drove away in her car. The victim testified that defendant punched her in the face and kicked her repeatedly. She was required to visit the hospital for x-rays. In addition, she testified that her face was red and puffy for a substantial period of time, she had a black eye for three weeks, and her face was still tender six months after the incident. The Eighth Circuit held that these facts supported a § 2B3.1(b)(3)(A) bodily injury enhancement. U.S. v. Sumner, 171 F.3d 636 (8th Cir. 1999).

8th Circuit applies dangerous weapon enhancement for beating victim with baseball bat. (160) Defendant and his brother were central figures in a cocaine distribution conspiracy. The Eighth Circuit affirmed a § 2D1.1(b)(1) dangerous weapon enhancement based on a co-conspirator’s testimony that defendant and his brother beat the co-conspirator with baseball bats. A “dangerous weapon” is defined as “an instrument capable of inflicting death or great bodily harm” under note 1 to § 1B1.1. A baseball bat, when used as a club, meets this definition. U.S. v. Johnson, 169 F.3d 1092 (8th Cir. 1999).

8th Circuit holds that 12 checks written on fraudulently opened account involved more than minimal planning. (160) Defendant opened a bank account using his brother’s name and birth date, a false social security number, and an identification card in his brother’s name that listed defendant’s own height, weight and hair color. Defendant deposited a stolen check for $5,000 that had been made payable to his brother. He wrote 12 checks on the account. The Eighth Circuit affirmed a § 2F1.1(b)(2)(A) enhancement for more than minimal planning. Defendant either caused the stolen check to be forged or obtained an identity card to match the name on the check. He then used the false identity card to open the bank account. These steps, by themselves, were sufficient to establish more than minimal planning. In addition, defendant wrote 12 check on the account using his brother’s name. These “repeated acts over a period of time” also signified more than minimal planning. U.S. v. Moser, 168 F.3d 1130 (8th Cir. 1999).

8th Circuit holds that mace was used as dangerous weapon. (160) Defendant and three accomplices attempted to rob an armored car courier collecting money from a store. During the attempt, one accomplice sprayed the armored car courier with chemical mace, and another accomplice sprayed mace in the face of a store employee. The Eighth Circuit upheld a § 2B3.1 (b)(2)(D) enhancement for using a dangerous weapon. Note 1(d) to § 1B1.1 says that a dangerous weapon is an instrument capable of inflicting death or serious bodily injury. Under note 1(j), a serious bodily injury involves extreme physical pain or the protracted impairment of a function of a bodily member, organ or mental faculty. The store employee sprayed in the face suffered serious bodily injury from the mace. She developed chemical pneumonia, and missed almost two weeks of work. She also had to take daily steroid shots for over four months and steroid pills for one year to cleanse the mace from her system. U.S. v. Bartolotta, 153 F.3d 875 (8th Cir. 1998).

8th Circuit finds bank fraud and embezzlement involved more than minimal planning. (160) Defendant, the largest stockholder and president of an Arkansas bank, was convicted of bank fraud, embezzlement and related counts. In one instance, he created false documents to move $14,000 from the bank’s data processing account to an account of a business he created with five other bank officers. Later, he and two other bank officers each withdrew $4,000 from the account as a “personal bonus.” On another occasion, he took a $30,000 loan from the bank, and in a complicated set of transfers, eventually used bank funds to repay the bank $30,027.86. The Eighth Circuit affirmed a more than minimal planning enhancement, noting that the examples of more than minimal planning listed in Application Note 1(f) to § 1B1.1 were very close to what occurred here. The numerous false documents created in false transactions were “significant affirmative steps” to hide the offense. Repetition is not required to show more than minimal planning. U.S. v. Patterson, 148 F.3d 1013 (8th Cir. 1998).

8th Circuit says more than minimal planning focuses on offense rather than defendant’s role. (160) Defendants were convicted of making a materially false statement to a bank. In refusing to apply a more than minimal planning enhancement, the district court noted that if there was more than minimal planning, it was on the part of another man rather than these three defendants. The Eighth Circuit held that the district court should have focused on the nature of the offense rather than the nature of defendant’s role in that offense. The court clearly erred in not assessing the more than minimal planning enhancement. The conspiracy spanned more than 3 years, involved more than 90 sales of contracts, and featured personal participation by each defendant in forging guarantees with their wives’ names. U.S. v. Wells, 127 F.3d 739 (8th Cir. 1997).

8th Circuit finds serious bodily injury based on stress disorder that required hospitalization. (160) Defendant and his brother attempted to kill an undercover agent. The Eighth Circuit affirmed a serious bodily injury enhancement under § 2A2.1(b) (1)(B) based on the injuries the officer received in the attack. The victim was struck on the head multiple times and received several stitches to the resulting lacerations. He received bruises to both arms and left shoulder. Additionally, the victim developed Post-traumatic Stress Disorder (PTSD), for which he was subsequently hospitalized. He suffered irrational, debilitating fear, night terrors and nightmares, depression, and anxiety attacks that generalized into all other areas of life management. While PTSD may not always rise to the level of serious bodily injury, it certainly can, and in combination with the other injuries suffered, it did here. U.S. v. Rodgers, 122 F.3d 1129 (8th Cir. 1997).

8th Circuit holds that banker’s fraud involved more than minimal planning. (160) Defendant, a banker, helped two brothers commit fraud by making it appear that his bank had lent the brothers a large sum of money. The Eighth Circuit agreed that the fraud involved more than minimal planning. Defendant approved the bank “loan” to a shell corporation, he put a hold on the shell’s and the subsidiary’s bank account, and he represented that the subsidiary had obtained financing from the bank for the purpose of purchasing equipment, and that the equipment had been purchased. These acts were thoughtful and complex, and extended over a period of several months. U.S. v. Gjerde, 110 F.3d 595 (8th Cir. 1997).

8th Circuit rejects bodily injury enhancement for “minor injuries” from choking. (160) When police tried to arrest defendant, he grabbed one of the officers around the neck. A struggle ensued, and defendant and two officers fell to the ground. The PSR reported that one of the officers suffered minor injuries. The Eighth Circuit rejected a § 2B3.1(b)(3)(A) bodily injury enhancement. Bodily injury means any significant injury, e.g. an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought. Although the district court found that “choking” falls within the category of bodily injury, it is not defendant’s conduct, but the resulting physical injury, that is the determining factor. The government did not call the injured officer to testify regarding the nature of his injuries, and the only evidence concerning the injuries was the PSR’s characterization of them as “minor.” U.S. v. Dodson, 109 F.3d 486 (8th Cir. 1997).

8th Circuit says knife need not be produced for dangerous weapon enhancement. (160) Defendant received a § 2D1.1(b)(1) enhancement for possessing a dangerous weapon, a knife, during a drug trafficking crime. Because the knife was not produced or described at trial, defendant argued that there was no evidence that the knife was “dangerous,” i.e. capable of inflicting death or serious bodily injury as required by note 1(d) to § 1B1.1. The Eighth Circuit held that the government was not required to produce the knife to show it was dangerous. A co‑conspirator testified at trial that defendant threatened him with a knife because he smoked up the crack that defendant gave him to sell and did not pay for the drugs. The co‑conspirator felt threatened by this conduct. This testimony was sufficient to prove that defendant possessed a dangerous weapon, a knife, in connection with his criminal conduct. U.S. v. Scott, 91 F.3d 1058 (8th Cir. 1996).

8th Circuit finds more than minimal planning for concealing first fraud to induce later investment. (160) Defendant brokers induced an investor to invest $50,000 toward the purchase of woolen mill equipment that a Mexican buyer had supposedly committed to repurchase, and another $28,000 to purchase and resell commercial sewing machines. The Eighth Circuit agreed that the offense involved more than minimal planning, given the efforts to conceal the first offense from the victim in order to be able to induce him to invest in the later scheme. U.S. v. Schwalb, 83 F.3d 1039 (8th Cir. 1996).

8th Circuit uses aggravated assault guideline where defendant knocked out officer to steal seized drug proceeds. (160) Defendant was stopped at the airport carrying $16,000 cash. While a police detective counted the money, defendant struck of detective in the back of the head with his fist, causing the detective to fall forward and be knocked unconscious. Defendant grabbed the cash and fled. The Eighth Circuit held that defendant was properly sentenced under § 2A2.2, aggravated assault, rather than § 2A2.4, obstructing or impeding an officer. The offense involved both serious bodily injury and intent to commit another felony. The detective’s injury required hospitalization, albeit briefly, and involved the impairment of his mental faculties when he was knocked unconscious. In addition, defendant struck the officer to facilitate the robbery of the seized drug proceeds. U.S. v. Thompson, 60 F.3d 514 (8th Cir. 1995).

8th Circuit agrees that insurance fraud involved more than minimal planning. (160) Defendant falsely reported to his insurance company that his truck had been stolen. He then disguised the truck by partially rebuilding it with parts from other trucks that he had previously stolen. The 8th Circuit agreed that the offense involved more than minimal planning under § 2F1.1(b)(2)(A). Defendant developed an elaborate scheme involving the staged theft of his vehicle in New Orleans and the subsequent masking of the vehicle so it could not be identified and he could continue to use it. This conduct, designed to avoid detection, constituted “significant affirmative steps” taken to conceal the offense. U.S. v. Ballew, 40 F.3d 936 (8th Cir. 1994).

8th Circuit holds that bank fraud involved more than minimal planning. (160) After defendant’s checking accounts were closed, the bank’s president allowed defendant to continue to write checks on the closed accounts. The checks were cleared by drawing on defendant’s line of credit. To reduce the amount outstanding before a bank audit, defendant deposited in the line of credit insufficient funds checks written on another bank account. The president credited the line of credit before the checks were presented to the second bank for payment. Defendant eventually pled guilty to a single bank fraud count relating to an insufficient funds check written on the second bank account. The 8th Circuit agreed that the offense involved more than minimal planning. The scheme existed for more than a year and involved substantial contact between defendant and the bank president. Moreover, defendant actively worked with the president to avoid detection of their activity. U.S. v. Sheahan, 31 F.3d 595 (8th Cir. 1994).

8th Circuit holds that abduction does not require physical force. (160) Defendant raped and sodomized a mentally-retarded nine-year old girl. He challenged an enhancement under § 2A3.1(b)(5) for abducting his victim, claiming he did not use physical force. The 8th Circuit held that abduction does not require physical force. Note 1(a) to § 1B1.1 says that “abducted” means that a victim was forced to accompany an offender to a different location. “Forced” does not necessarily imply a physical assault. “Force” should be given its ordinary meaning of overcoming the will of another. Here, the facts supported the inference that defendant took the victim out of town against her will. The victim was unable to communicate effectively or understand the meaning of conversation. She lived a half block from the store where she was last seen, she rarely had been outside of town, she habitually visited the store, and was occasionally escorted home by employees. U.S. v. Saknikent, 30 F.3d 1012 (8th Cir. 1994).

8th Circuit holds that plastic explosive brick is a dangerous weapon. (160) Defendant was convicted of possessing ephedrine with intent to produce methamphetamine, and acquitted of knowingly carrying a destructive device, a C-4 plastic explosive brick. Despite the acquittal, the 8th Circuit upheld an enhancement under section 2D1.11(b)(1) for possession of a dangerous weapon. Because the standards of proof are different, acquittal on a weapons charge does not preclude a sentencing enhancement for the acquitted conduct. The plastic explosive brick was a dangerous weapon, even if it was missing the mechanism required for detonation. Since the brick appeared to be a destructive or dangerous weapon, it was properly treated as a dangerous weapon for sentencing enhancement purposes. U.S. v. Roach, 28 F.3d 729 (8th Cir. 1994).

8th Circuit rules abuse of trust and more than minimal planning not double counting. (160) The 8th Circuit rejected defendant’s claim that the enhancements for more than minimal planning and abuse of trust constituted impermissible double counting. The concern behind the abuse of trust enhancement focuses on the relationship between the defendant and his victims. This concern is different than the concern behind the more than minimal planning enhancement. U.S. v. Reetz, 18 F.3d 595 (8th Cir. 1994).

8th Circuit finds bank patron was abducted and that bank robber “used” a knife. (160) During one of his bank robberies, defendant held a bank patron at knife-point. After receiving money from the teller, defendant forced the patron, still at knife-point, into the bank’s parking lot where he demanded the keys to the patron’s vehicle. After the patron complied, he released the patron and escaped. The 8th Circuit upheld a four-level enhancement for abduction under § 2B3.1(b)(4)(A). Abduction is defined under § 1B1.1 to mean that the victim was forced to accompany the offender to a different location. There was no doubt that defendant forced the bank patron to another location, from the bank lobby to the parking lot. The court also upheld an enhancement under § 2B3.1(b)(2) based on defendant’s “use” of the knife, rejecting defendant’s suggestion that he merely “brandished” it. Placing a knife on the throat of an innocent bystander constitutes “use” of a dangerous weapon. U.S. v. Elkins, 16 F.3d 952 (8th Cir. 1994).

8th Circuit holds that stolen check scheme involved more than minimal planning. (160) The 8th Circuit upheld a more than minimal planning enhancement for a defendant convicted of unlawfully possessing four stolen checks. The repetitive nature of the criminal conduct, by itself, may warrant the enhancement. Here, defendant forged his name on at least two checks and attempted to cash them, and was successful in cashing other stolen checks. U.S. v. Sykes, 7 F.3d 1331 (7th Cir. 1993).

8th Circuit reverses ruling that knife wound to kidney was not “serious bodily injury.” (160) Defendant was convicted of assault for stabbing the victim in the kidney. After announcing its intent to impose a sentence as close as possible to that reversed on a previous appeal, the district court concluded that the victim’s wound was not a serious bodily injury, although the court admitted on the record to being “less than intellectually honest.” The 8th Circuit reversed the determination, noting that the victim’s wound resulted in four days’ hospitalization, the loss of one-third of her blood supply, and excruciating pain. The court also reversed the district court’s downward departure designed to give defendant “credit” for time she had spent in a shelter for abused adults. U.S. v. Desormeaux, 4 F.2d 628 (8th Cir. 1993).

8th Circuit finds physical restraint even though bank vault door did not lock. (160) While carrying firearms, defendants ordered their victims into the bank vault, attempted to lock the vault door, and wedged a chair against the vault door when it would not lock. The 8th Circuit upheld an enhancement under §2B3.1(b)(4)(B) for physical restraint of the victims. Even though the vault door was not locked and the victims were able to free themselves easily, the victims were forced to comply. The enhancement did not constitute double counting with section 924(c). Defendants received the enhancement because they restrained the victims in the vault to facilitate their offense, not because defendants possessed firearms during the robbery. U.S. v. Schau, 1 F.3d 729 (8th Cir. 1993).

8th Circuit says unloaded pellet gun is dangerous weapon. (160) The 8th Circuit affirmed that the unloaded pellet gun used by defendant in a bank robbery was a dangerous weapon warranting an enhancement under guideline section 2B3.1(b)(2). U.S. v. Elliott, 992 F.2d 853 (8th Cir. 1993).

8th Circuit finds practice of depositing checks into own account showed more than minimal planning. (160) Defendant pled guilty to concealing assets from a bankruptcy trustee. He received an enhancement for more than minimal planning based on his concealment of 36 checks over a six-month period. Defendant argued that there was no particular planning, but merely a continuation of an established pattern. The 8th Circuit affirmed the enhancement. When defendant admitted that his company had the continuing practice of depositing the checks into company accounts, he conceded the point. Moreover, the district court found that there were repeated acts over a period of time, and that defendant took significant, affirmative steps to conceal the offense. U.S. v. Little, 990 F.2d 1090 (8th Cir. 1993).

8th Circuit holds defendant responsible for more than minimal planning by other conspirators. (160) Defendant was convicted of offenses relating to his involvement in a murder-for-hire scheme. He contended that a more than minimal planning enhancement was improper since even if the conspiracy involved such planning, he was not personally involved in it. The 8th Circuit upheld the enhancement. Defendant made several trips to Arkansas with others for the purpose of killing the victim before the actual assault. Additionally, defendant admitted others in the conspiracy engaged in more than minimal planning. This planning was reasonably foreseeable in a conspiracy to murder scheme, and defendant was therefore responsible for such planning. U.S. v. Parker, 989 F.2d 948 (8th Cir. 1993).

8th Circuit affirms that bank fraud involved more than minimal planning. (160) The 8th Circuit affirmed that defendant’s bank fraud involved more than minimal planning under section 2F1.1(b)(2). The case involved more than simply writing a check on a closed account. Defendant opened an account at one bank using an alias, then closed it six months later. The following month he opened an account at a second bank using a different alias, and later directed an acquaintance to deposit a check drawn on the closed first account into the second account. The second bank honored the bad check and thus suffered a loss. U.S. v. Starr, 986 F.2d 281 (8th Cir. 1993).

8th Circuit agrees that false social security number offense involved more than minimal planning. (160) The 8th Circuit affirmed that defendant’s offense of using a false social security number involved more than minimal planning. Defendant had detailed written instructions about how to conceal his identity at the various banks, how to structure transactions so as to avoid detection, and what answer to give if a teller asked for his social security card. U.S. v. Lublin, 981 F.2d 367 (8th Cir. 1992).

8th Circuit affirms more than minimal planning enhancement for offense involving “simple book entry.” (160) In order to disguise the fact that defendant’s bank was violating a bank regulator’s order by loaning $40,000 to a related company, defendant falsely entered in the bank records that the $40,000 payment was to purchase furniture and fixtures from the company. The 8th Circuit affirmed enhancements for the $40,000 loss under 2F1.1(b)(1)(E), for more than minimal planning under 2F1.1(b)(2)(A), for abuse of trust under section 3B1.1. Although the court was concerned about the more than minimal planning enhancement for an offense which was committed by a “simple book entry,” the district court’s findings were not clearly erroneous. U.S. v. Pooler, 961 F.2d 1354 (8th Cir. 1992).

8th Circuit affirms basing “more than minimal planning” enhancement on the offense rather than defendant’s role. (160) Defendant contended that an enhancement for more than minimal planning under guideline section 2F1.1(b)(2) was improper because he only took instructions from another co-conspirator. The 8th Circuit rejected this argument, because it improperly focused on the nature of defendant’s role in the offense, rather than the nature of the offense itself. The government presented evidence that the pattern of fraudulent activity extended over a period of at least eight months, and involved a significant amount of planning. U.S. v. Earles, 955 F.2d 1175 (8th Cir. 1992).

8th Circuit affirms more than minimal planning adjustment for repeated thefts. (160) Defendants were part of a conspiracy which used “boosters” to shoplift merchandise from retail outlets, and then retagged the merchandise and resold it through another retail outlet. Over time, the conspiracy stole $475,000 worth of merchandise. The 8th Circuit upheld an enhancement under section 2B1.2(b)(4)(B) for more than minimal planning, rejecting defendants’ claim that the conspiracy charge and the nine level increase they received for the value of the stolen property both took into account this aspect of their crimes. The more than minimal planning enhancement increases the punishment for repeated criminal acts, regardless of the amount stolen. The court rejected defendants’ claim that the enhancement requires extensive planning, complex activity or concealment. The conspiracy clearly involved more than minimal planning, even if defendants were not the planners. U.S. v. Wilson, 955 F.2d 547 (8th Cir. 1992).

8th Circuit affirms that theft by armored car employee involved more than minimal planning. (160) Defendant worked for an armored car company as a messenger responsible for accepting and distributing the car’s currency or cargo. One day after receiving a bag containing $25,000 without having to sign for it, he stole the money. The 8th Circuit affirmed a two-level increase under guideline section 2B1.1(b)(5) for more than minimal planning. The district court found that defendant had stolen money from the armored car’s cargo on several earlier occasions and had taken substantial steps to conceal his thefts, including the final theft of $25,000. U.S. v. Coney, 949 F.2d 966 (8th Cir. 1991).

8th Circuit finds more than minimal planning in defendant’s concealment of change of circumstances in disability claim. (160) Defendant received disability benefits from the Social Security Administration (SSA) on behalf of her disabled infant granddaughter who lived with her. After the infant was removed from the home because of neglect, defendant never notified the SSA about the change in status or advised the granddaughter’s foster mother about the disability payments. Defendant completed and signed a statement with the SSA indicating there were no changes in the number of people in her household. Although the granddaughter was eventually adopted by her foster mother, defendant continued to receive the disability payments and use them for her own benefit. The 8th Circuit affirmed an enhancement under guideline § 2F1.1(b)(2)(A) for more than minimal planning. While defendant’s receipt of the checks may have been purely opportune, her concealment of the granddaughter’s absence and her continued use of the checks required the necessary repeated acts over a period of time to justify the enhancement. U.S. v. Callaway, 943 F.2d 29 (8th Cir. 1991).

8th Circuit finds more than minimal planning where offense lasted more than two years. (160) Defendant contended that the district court erred in increasing his offense level by two because his fraud involved more than minimal planning under guideline § 2F1.1(b)(2). Defendant argued that he was not involved in the more extensive aspects of the fraud. The 8th Circuit rejected this argument since it went more to defendant’s role in the offense than to the nature of the offense itself. Almost any crime that consists of a pattern of activity over a long period of time will qualify as an offense involving more than minimal planning. Since it was not disputed that the fraudulent scheme involved more than minimal planning and that defendant was involved in the scheme for almost two years, the application of § 2F1.1(b)(2) was not clearly erroneous. U.S. v. West, 942 F.2d 528 (8th Cir. 1991).

8th Circuit upholds increase in offense level for value of plane and more than minimal planning. (160) Defendant was convicted of conspiracy to transport a stolen aircraft. The district court increased his offense level because the airplane was worth over a million dollars and the offense involved more than minimal planning. The 8th Circuit upheld both adjustments. Although defendant presented evidence that the plane was worth less than one million dollars, there was conflicting evidence from witnesses who testified that the plane was worth several million dollars. Defendant had purchased disguises for himself and his girlfriend, which by itself, was sufficient to establish that the offense involved more than minimal planning. U.S. v. Culver, 929 F.2d 389 (8th Cir. 1991).

8th Circuit finds concealing identity by obtaining numerous pieces of false identification constituted more than minimal planning. (160) Defendant entered the country illegally and acquired at least 12 pieces of false identification in order to conceal his identity. The 8th Circuit upheld a finding that defendant committed an offense with more than minimal planning. Defendant obtained more than one piece of identification, and the government seized additional material from defendant’s locker useful in obtaining additional false identification. Defendant attempted to conceal the fact that he was in the country illegally by giving authorities a false name. Therefore, it was proper to increase defendant’s offense level by two pursuant to guideline § 2F1.1(b)(2)(A). U.S. v. Reyes, 908 F.2d 281 (8th Cir. 1990).

8th Circuit holds that adjustment for more than minimal planning was improperly based on same conduct as obstruction adjustment. (160) The bank embezzlement guideline, § 2B1.1, authorizes a two-level upward adjustment for “more than minimal planning,” when “significant affirmative steps are taken to conceal the offense.” Since the district court found there was more than minimal planning here, it was improper for the court to find on the same facts that defendant obstructed justice under U.S.S.G. § 3C1.1. This constituted cumulative punishment for the same conduct, and required reversal. U.S. v. Werlinger, 894 F.2d 1015 (8th Cir. 1990).

8th Circuit holds that phrase “more than minimal planning” is not ambiguous. (160) Defendants pled guilty to mail fraud and received a two level increase for more than minimal planning, § 1F1.1. During an eight month period defendants had created a fictitious business name and opened both a bank account and post office under that name. Seventy fraudulent payment requests or drafts were submitted by defendants. On appeal, defendants argued that there was no benchmark to measure their conduct since mail fraud necessarily involves several acts and is never impulsive or unplanned. The 8th Circuit disagreed, holding that “more than minimal planning means more planning than is typical for commission of an offense. Mail fraud requires only a single overt act and defendants’ activities exceeded a single act. The court held that the guidelines define the phase “more than minimal planning” with clarity, provide helpful illustrations and are not inherently ambiguous. U.S. v. Hearrin, 892 F.2d 756 (8th Cir. 1990).

9th Circuit says fake bomb is a dangerous weapon. (160) Defendant robbed a bank using a fake bomb. At his sentencing for bank robbery, the district court enhanced his offense level under § 2B3.1(b)(2), which provides for a four-level increase when “a dangerous weapon was otherwise used” during a bank robbery. The commentary to § 1B1.1 defines “dangerous weapon” to include an object that closely resembles an instrument capable of inflicting bodily injury or an object that the defendant used in a manner to create the impression that the object was capable of inflicting serious bodily injury. The Ninth Circuit held that a fake bomb constitutes a “dangerous weapon” within the meaning of § 2B3.1(b)(2) and that the district court properly enhanced defendant’s offense level. U.S. v. Bendtzen, 542 F.3d 722 (9th Cir. 2008).

9th Circuit holds voluntary manslaughter is a “crime of violence” and does not require specific intent. (160) Defendant argued that his prior conviction for voluntary manslaughter was not a “crime of violence” as defined in § 2L1.2(b)(1) because, according to him, “attempted use” and “threatened use” of force both require specific intent. The Ninth Circuit disagreed, noting that the designation of an offense as a “crime of violence” does not require intentional use of force. See U.S. v. Trinidad Aquino, 259 F.3d 1140, 1146 (9th Cir. 2001); see also Park v. I.N.S., 252 F.3d 1018, 1022 (9th Cir. 2001) (holding that California’s involuntary manslaughter statute is a “crime of violence” and recklessness is a sufficient mens rea to establish it). The court also rejected defendant’s argument that the government must prove that the offense has a particular element and constitutes a specific type of crime. Under defendant’s argument “burglary of a dwelling” would not be a crime of violence despite its inclusion in subpart (II), because it does not contain the physical force element required in subpart (I). U.S. v. Bonilla-Montenegro, 331 F.3d 1047 (9th Cir. 2003).

9th Circuit says “circumstances” as well as injuries can be “life-threatening.” (160) The carjacking victim was bound and locked in the trunk of a car in freezing weather for many hours. One of the defendants opened the trunk and beat him on the head between forty and fifty times with a piece of metal pipe, causing him to bleed heavily. Later the defendant beat the victim again with a piece of metal pipe and then ordered the co-defendant to cut the victim’s throat. The co-defendant made several shallow cuts and stabbed the victim in the shoulder. The victim was thrown into a remote gully and buried in snow on a freezing night, but he survived. The district court found the victim’s injuries were “serious” but not “life-threatening” under § 2B3.1(b)(3). On appeal, the Ninth Circuit remanded to reconsider whether the injuries were “life-threatening.” The district court apparently erroneously believed that the enhancement did not apply when the “circumstances” were life-threatening. However, the Ninth Circuit held that depriving the victim of fresh air, food, water, medical care and heat, was “maltreatment” of the sort contemplated in the guidelines and if this was maltreatment to a life-threatening degree, it would justify a six-level enhancement irrespective of the other injuries that the victim suffered. U.S. v. Morgan, 238 F.3d 1180 (9th Cir. 2001).

9th Circuit finds screwdriver pressed into bank guard’s back was a “dangerous weapon.” (160) As his companions went into the bank to rob it, defendant approached the security guard outside the bank, pressed something into the guard’s back and ordered the guard to jog towards the bank entrance. The guard believed that defendant had pressed a gun into his back. Defendant denied having a gun, but admitted carrying a screwdriver. The district court applied a three level increase under § 2B3.1(b)(2)(E) for possession of a dangerous weapon. On appeal, the Ninth Circuit affirmed, rejecting defendant’s argument that items should be considered dangerous weapons only when they are carried with the intent to use them as weapons. “Sentencing factors . . . are not separate criminal offenses and such are not normally required to carry their own mens rea requirements.” Because a screwdriver can be used to inflict serious bodily injury, it was a dangerous weapon. U.S. v. Lavender, 224 F.3d 939 (9th Cir. 2000).

9th Circuit says cellular phone was a “dangerous weapon” when used to simulate a gun. (160) In attempting to escape arrest for selling counterfeit money, defendant climbed into the passenger side of an occupied pickup truck, stuck a black object which he claimed was a gun into the driver’s back and ordered him to get out of the car. The driver started to grab for the object while government agents approached the vehicle with their weapons drawn and took the defendant into custody. The agents later determined that the object was a cellular phone. The Ninth Circuit upheld an enhancement for use of a dangerous weapon in a counterfeiting offense, holding that “a cellular phone qualifies as a dangerous weapon when represented by the defendant to be a gun.” The question “depends more on the object’s ability to incite fear and violence because it appears to be dangerous than on its latent capability.” By “intentionally creating the appearance that he was armed and by thereby inciting fear and the potential for violence” defendant “rendered his cellular phone into a dangerous weapon.” U.S. v. Michael, 220 F.3d 1075 (9th Cir. 2000).

9th Circuit finds more than minimal planning in environmental crime. (160) Defendant was convicted of mail fraud and environmental crimes after he disposed of sewage sludge in violation of his company’s permit with the City of San Diego. The district court increased his sentence for more than minimal planning under § 2F1.1(b)(2)(a), stating “this was an ongoing scheme to submit false weigh master certificates to the City. It was extensive. It was sophisticated.” The Ninth Circuit found no clear error. U.S. v. Cooper, 173 F.3d 1192 (9th Cir. 1999).

9th Circuit says pepper spray used in bank robbery was a dangerous weapon. (160) Defendant’s expert, a 25-year police veteran stated that pepper spray was not a dangerous weapon, and that in four years of investigating the use of pepper spray by Eugene police officers, there was never an instance of injury. Defendant also introduced an article from the National Institute of Justice which found that only fourteen of 174 suspects sprayed with pepper spray suffered any injuries and those injuries were minor, requiring no hospital treatment. Nevertheless, the victim in this case testified that her prior asthma condition was worsened by being sprayed in the face with pepper spray during the robbery. She said she continued to suffer from severe asthma brought on by the pepper spray and was required to take five asthma relief pills a day for the rest of her life. On these facts, where the pepper spray caused serious bodily injury, the Ninth Circuit agreed with the district court that it was a dangerous weapon. Thus, the four level increase under § 2B3.1(b)(2)(D) was justified. U.S. v. Neill, 166 F.3d 943 (9th Cir. 1999).

9th Circuit holds “physical restraint” does not require actual touching. (160) During the bank robbery, defendant either repeatedly forced one employee to get down on the floor and get up again at gun point, or he forced another employee to walk from the teller area to the vault area at gun point. In either case he profanely threatened to kill his victim. The district court increased his sentence by two levels for physical restraint of a victim under § 2B3.1(b)(4)(B). On appeal, the Ninth Circuit affirmed, holding that no actual touching is required for a “physical restraint” enhancement. “When a dangerous weapon is used to force a person to move about, that person has been physically restrained just as surely as if he was grabbed by the collar and pulled along.” The Eighth and Eleventh Circuits are in accord. U.S. v. Schau, 1 F.3d 729, 730 (8th Cir. 1993); U.S. v. Jones, 32 F.3d 1512, 1518-19 (11th Cir. 1994). Thus, the defendant in this case physically restrained the victim by controlling her actions by threatening her with a gun. U.S. v. Thompson, 109 F.3d 639 (9th Cir. 1997).

9th Circuit permits enhancement for both role and more than minimal planning. (160) Relying on U.S. v. Kelly, 993, F.2d 702, 705 (9th Cir. 1993), the court reaffirmed that it is proper to apply an enhancement for organizer role as well as an enhancement for more than minimal planning. U.S. v. Licciardi, 30 F.3d 1127 (9th Cir. 1994).

9th Circuit finds more than minimal planning based on repeated acts of bankrupt. (160) Defendant filed bankruptcy petitions to avoid being evicted from property he had purchased. The district court increased his offense level finding “more than minimal planning.” The Ninth Circuit upheld the increase even though the offense was simple in the sense it was effectuated by failing to provide required information on bankruptcy documents. The element of planning was sophisticated and the underlying behavior was repeated over an extended period of time. U.S. v. Lindholm, 24 F.3d 1078 (9th Cir. 1994).

9th Circuit says starter gun is not “firearm” unless it expels a projectile by explosive. (160) Defendant’s bank robbery sentence was enhanced under section 2B3.1(b)(2)(C) because he brandished a starter pistol during the robbery. Under section 1B1.1, commentary note 1(e), a “firearm” is defined as “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by action of an explosive.” The 9th Circuit held that under this definition, “not all starter guns are firearms.” Since the evidence in this case was insufficient to determine whether the starter gun was capable of expelling a projectile by action of an explosive, the defendant’s sentence was vacated and the case was remanded for resentencing after an evidentiary hearing on the issue. U.S. v. Burnett, 16 F.3d 358 (9th Cir. 1994).

9th Circuit upholds departure for profit motive and more than minimal planning. (160) Defendant had a profit motive for hiring a “hit man” to kill his wife because he would receive the proceeds of a life insurance policy. The offense also involved more than minimal planning. Accordingly, the 9th Circuit upheld a departure was proper based on both grounds. The extent of the departure was reasonable on either ground. U.S. v. Fontenot, 14 F.3d 1364 (9th Cir. 1994).

9th Circuit finds aggravated assault guideline proper and fractured elbow was “serious injury.” (160) Defendant was a police officer convicted of various federal civil rights violations in which he fractured the elbow of one victim. The fractured elbow resulted in the victim wearing a sling and being unable to write. The 9th Circuit found that the was a “serious” injury as defined in §1B1.1. The aggravated assault guideline was also properly applied. The district court’s comment on defendant’s prior history of violence played only a negligible role in the court’s determination of the proper guideline. U.S. v. Reese, 2 F.3d 870 (9th Cir. 1993).

9th Circuit finds “more than minimal planning” and aggravating role not double counting in fraud case. (160) In determining the offense level for defendant’s steroid counterfeiting conviction, the district court increased for both “more than minimal planning” and aggravating role. The 9th Circuit affirmed application of both enhancements finding it did not result in impermissible double counting. The increase for “more than minimal planning” results from the complexity of the overall scheme and the aggravating role increase is a result of defendant’s role within the group of conspirators. The crime of fraud does not automatically include “more than minimal planning” or aggravating role. U.S. v. Kelly, 993 F.2d 702 (9th Cir. 1993).

9th Circuit says persons in bank were “physically restrained” and departure was proper. (160) Defendant went into the bank, grabbed an elderly female customer around the neck and shoved a hard object that felt like a gun into her back. He then dragged her by the neck toward a gate that led to the teller station. He let go of the woman, and grabbed a customer service representative. The district court imposed a two level increase under 2B3.1(b)(4)(B) for the physical restraint of the woman and departed upward by nine months for the restraint of the customer service representative. On appeal, the 9th Circuit affirmed, holding that the phrase “physically restrained” in U.S.S.G. section 1B1.1 is not limited to being tied, bound, or locked up. The departure was proper because the defendant restrained more than one person and the extent of the departure was reasonable. U.S. v. Foppe, 993 F.2d 1444 (9th Cir. 1993).

9th Circuit upholds adjustment for more than minimal planning and rejects minor role. (160) “More than minimal planning” is defined by guideline section 1B1.1, commentary note 1(f) as “repeated acts over a period of time.” Or, if a single act, “more planning than is typical for commission of the offense in a simple form.” Such planning also “exists if significant affirmative steps were taken to conceal the offense.” In this case, the record supported the adjustment for more than minimal planning. Moreover, “[b]ecause the district court did not err by adjusting [defendant’s] offense level upward by two points, it necessarily follows that it did not err by rejecting [defendant’s] argument that he was entitled to a two- or four-level downward adjustment” for minimal or minor role. U.S. v. Mullins, 992 F.2d 1472 (9th Cir. 1993).

9th Circuit holds that stockbroker’s thefts over a year and a half showed more than minimal planning. (160) Defendant argued that he simply took the money out of his customer’s account and used it for himself without planning. The 9th Circuit rejected the argument, noting that “more than minimal planning is deemed present in any case involving repeated acts over a period of time.” U.S.S.G. section 1B1.1, Application Note 1(f). Defendant’s thefts were repeated over at least a year and a half, involved the use of phony letters of authorization from customers, and some disguise of defendant’s bank accounts. “The thefts were not the work of a master criminal but they were neither simple nor unsophisticated.” The enhancement for more than minimal planning was appropriate. U.S. v. Donine, 985 F.2d 463 (9th Cir. 1993).

9th Circuit affirms that laceration requiring twenty-five sutures was “serious bodily injury.” (160) The presentence report said that defendant struck the victim twice on the head with a metal object resembling a gun, causing a laceration which required a two-layer closure using more than twenty-five sutures. Defendant argued that this constituted only “bodily injury” rather that “serious bodily injury.” The 9th Circuit rejected the argument, holding that a two-layer closure involving more than twenty-five sutures constitutes “surgery,” and warrants a four level increase in offense level. U.S. v. Corbin, 972 F.2d 271 (9th Cir. 1992).

9th Circuit upholds bodily injury enhancement for slapping bank teller’s face. (160) U.S.S.G. section 2B3.1(b)(3)(A) calls for a two level sentencing enhancement when a robber inflicts bodily injury on the victim. During the course of a bank robbery, the defendant twice slapped a bank teller, which left an outline of the defendant’s hand imprinted on the victim’s cheek and neck. The impact dislodged the teller’s pierced earrings, cause her cheek to swell and the resulting pain required her to seek a doctor’s care. The 9th Circuit followed the Fourth Circuit’s ruling that a slap to the face constitutes “bodily injury.” The panel also stated that under U.S.S.G. § 1B1.1 comment. (n.1), this was a significant injury. It was painful, obvious and of the type for which medical attention would ordinarily be sought. Alternatively, the panel upheld the defendant’s sentence enhancement because the pain lingered for 24 hours and the repeated blows to the head were of the type for which medical attention would ordinarily be sought. U.S. v. Greene, 964 F.2d 911 (9th Cir. 1992).

9th Circuit finds that defendant possessed a dangerous weapon when he showed the outline of a gun under his shirt. (160) Defendant handed the teller a note stating that he had a gun in the waistband of his pants. He then pulled his T-shirt tightly so the teller saw the clear outline of a gun handle. On this evidence, the 9th Circuit held that the district court’s conclusion that defendant possessed, brandished, or displayed what appeared to be a dangerous weapon was not clearly erroneous. The court said that whether defendant actually possessed a functioning firearm was “beside the point.” “He intentionally created the inference that he possessed a dangerous weapon, he told his victim he had a gun, and the victim reasonably believed that [defendant] was armed.” U.S. v. Taylor, 960 F.2d 115 (9th Cir. 1992).

9th Circuit finds no double counting in enhancements for abuse of trust and more than minimal planning. (160) The 9th Circuit held that the defendant’s embezzlement scheme involved repeated thefts over two and a half years. “Carrying out such an extended scheme required more than minimal planning.” The abuse of trust, on the other hand, “grew out of her position as branch representative and her ability to conceal her crime because of her position.” Since the two enhancements stemmed from separate concerns, the 9th Circuit held that both could be applied to the embezzlement in this case. U.S. v. Christiansen, 958 F.2d 285 (9th Cir. 1992).

9th Circuit holds that toy gun is a “dangerous weapon” requiring enhancement under robbery guideline. (160) The 9th Circuit held that it was improper to base an upward departure on the toy gun, because a toy gun is a “dangerous weapon,” the use of which requires enhancement under the robbery guideline, § 1B1.1, comment (N.1)(d). The court noted that its recent decision in U.S. v. Smith, 905 F.2d 1296 (9th Cir. 1990), holds that even with regard to sentences before the November 1989 guidelines took effect, “toy guns were to be treated as dangerous weapons for which enhancement was appropriate.” U.S. v. Faulkner, 952 F.2d 1066 (9th Cir. 1991).

9th Circuit upholds enhancement for more than minimal planning in bank fraud case. (160) Defendant argued that because his conviction stemmed from only a single taking, an upward adjustment for more than minimal planning under section 2F1.1(b)(2)(A), was erroneous. The 9th Circuit rejected the argument, noting that the bank embezzlement and conspiracy for which the defendant was convicted involved more than “a single taking accomplished by false book entry.” The defendant reopened a previously inactive account into which a miscoded check was to be deposited. Another accomplice then opened a bank account at the same branch using a fictitious name. Most of the money was then withdrawn from the account over the next 15 days. The defendants also took significant affirmative steps to conceal the offense. U.S. v. Deeb, 944 F.2d 545 (9th Cir. 1991).

10th Circuit rejects serious bodily injury enhancement where no evidence of “protracted” impairment. (160) The district court applied a seven-level enhancement for serious bodily injury to an assault victim. However, the only evidence regarding the extent of the victim’s injuries was the testimony of two witnesses. A co-conspirator testified that when the fight stopped, the victim was not moving and the conspirator believed him to be “knocked out.” A bystander testified that when the fight ended, the victim was unconscious and bleeding from his head. She believed him to be seriously hurt or dead. A second bystander reported similar observations. The Tenth Circuit found insufficient evidence to uphold the district court’s finding that the victim suffered serious bodily injury, as opposed to bodily injury. The evidence did not establish a “protracted impairment of a function of a bodily member, organ, or mental facility.” Even if the witnesses were correct that the victim lost consciousness, there was no evidence whether the injury was “protracted,” and a brief loss of consciousness without more does not satisfy the definition of serious bodily injury. U.S. v. Egbert, 562 F.3d 1092 (10th Cir. 2009).

10th Circuit remands for more findings on refusal to apply dangerous weapon increase. (160) Defendants, who ran a residential mental health treatment house, directed their mentally ill residents to perform sexually explicit acts and farm labor in the nude, arguing that that these acts constituted legitimate psychotherapy for the residents’ mental illnesses. The district court refused to apply a §2H4.1(b)(2) enhancement for use of a dangerous weapon, a stun gun, stating that the device used by defendants “has not been shown by a preponderance of the evidence to be a ‘dangerous weapon.'” The Tenth Circuit ruled that this finding was insufficient to allow meaningful appellate review and remanded. It could not tell from that statement whether the court concluded that the stun gun was not capable of causing serious bodily injury, whether it was not actually used by defendants in the manner described by a victim, whether the injuries were not as serious as the victim maintained, or whether there was some other reason for the court’s refusal to apply the enhancement. U.S. v. Kaufman, 546 F.3d 1242 (10th Cir. 2008).

10th Circuit finds injury was “life-threatening” where victim could have bled to death. (160) Defendant pled guilty to assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153. The ER doctor stated that the arterial laceration to the back of the victim’s head posed a substantial risk of death at the time of the injury because of the amount of blood loss, and that if unchecked, the victim would have bled to death. The Tenth Circuit affirmed a seven-level enhancement for causing a life-threatening injury. Defendant argued for a five-level increase for “serious” bodily injury, because he pled guilty to causing a serious bodily injury, not a life-threatening injury. The Tenth Circuit found no error, finding defendant confused the statute with the Guidelines. For purposes of § 113(a)(6), serious bodily injury is defined to include injury involving a substantial risk of death or extreme physical pain. However, under Guideline § 2A2.2(b)(3), “serious bodily injury” includes injury involving extreme physical pain, while “permanent or life-threatening bodily injury” includes injury involving a substantial risk of death. See § 1B1.1, Note 1(J). The doctor’s undisputed statement, that the victim would have died if the bleeding had not been stopped, supported the seven-level enhancement for a life-threatening injury. U.S. v. Tindall, 519 F.3d 1057 (10th Cir. 2008).

10th Circuit rejects bodily injury increase based on red mark on head and small laceration on mouth. (160) While incarcerated as a federal inmate, defendant struck an officer twice with his fist, once on the mouth and once on the forehead. As a result of the assault, the officer sustained a small laceration on the inside of his mouth and a red mark on his forehead. The Tenth Circuit reversed a two-level bodily injury increase under § 2A2.4. The Sentencing Guidelines limits the definition of “bodily injury” to those that are “significant.” Note 1(B) to § 1B1.1. In every reported case where a bodily injury increase has been upheld against a challenge based on the significance of the injury, the record demonstrated injuries that were more severe than those here, were painful and lasting, or were for a type for which medial treatment would ordinarily be sought. The officer’s head injury consisted only of a red mark, without any reported swelling, bleeding, or bruising. Such a mark was not, in and of itself, necessarily painful or obvious. As for the oral cut, the court took judicial notice that oral injuries do not heal quickly. However, oral injuries come in all varieties, and the court only had before it the PSR’s cursory description of a “small laceration” and two photos of the officer’s head, which were of such poor quality that they did not support the court’s finding. U.S. v. Mejia-Canales, 467 F.3d 1280 (10th Cir. 2006).

10th Circuit holds that work boots used to kick restrained inmate are dangerous weapon. (160) Defendants, all former correctional officers, were convicted of offenses related to an assault on an inmate. The court found that the defendants subjected the inmate to an aggravated assault, defined as a felonious assault involving a dangerous weapon (i.e. one defendant’s uniform boots) with intent to do harm. The Tenth Circuit held that the work boots were properly characterized as a dangerous weapon. There was no question that one defendant, surrounded by other correctional officers, repeatedly used his boots with sufficient force to cause the victim, who was on the ground at the time, head injuries. In order to characterize the boots as dangerous weapons, the district court was not required to find that the boots would cause more serious injury than any other type of normal footwear. In proper circumstances, almost anything can count as a dangerous weapon. U.S. v. Serrata, 425 F.3d 886 (10th Cir. 2005).

10th Circuit holds that failure to pay child support involved more than minimal planning. (160) Defendant was convicted of two counts of failure to pay child support obligations in violation of the Child Support Recovery Act, 18 U.S.C. § 228(a)(1), and the Deadbeat Parents Punishment Act, 18 U.S.C. § 228(a)(3). The Tenth Circuit affirmed a § 2B1.1(b)(4) increase for more than minimal planning. Defendant went to “great lengths to avoid paying child support by his varying efforts of moving, and not filing tax returns, and generally being obstructive with the authorities on this.” This was not simply a failure to pay. U.S. v. Monts, 311 F.3d 993 (10th Cir. 2002).

10th Circuit holds that fraud involved more than minimal planning. (160) Posing as a wealthy rancher, defendant responded to Cook’s ad to sell his ranch. After a series of phone calls with Cook, defendant visited Cook the auspices of purchasing the ranch. During the visit, defendant made several false representations regarding his trading abilities in cattle futures. Cook eventually sent defendant $50,000 to invest, and defendant converted the money for his own personal expenses. The Tenth Circuit found that the district court committed several errors in imposing a § 2F1.1(b)(2) more than minimal planning increase, but nonetheless affirmed the enhancement. First, it was unclear what “significant affirmative acts” the court found that defendant took to conceal the offense. The court also misconstrued the intent of the language “repeated acts over a period of time.” This language refers to a series of acts each of which would be criminal standing alone, rather than referring to a crime that requires the completion of a series of steps. However, the increase was still proper because defendant’s actions demonstrated a greater amount of planning than required to defraud an individual of $50,000 in its simple form. The success of defendant’s scheme depended upon his ability to ingratiate himself to Cook. This required several contacts by phone, flying to Denver to meet Cook, development and use of false stores concerning his success in trading cattle futures, and several request for money. Taken together, these actions showed a level of planning in excess of the amount of necessary to commit the crime in its simple form. U.S. v. Proffit, 304 F.3d 1001 (10th Cir. 2002).

10th Circuit holds that use of false ID to open account did not involve more than minimal planning. (160) Defendant, together with an accomplice, entered a bank and used the identification card of her deceased sister to open a checking account in the sister’s name. She returned the following day to pick up starter checks for the account. Thereafter, the accomplice cashed checks and obtained money through the fraudulently opened account. The district court applied a § 2F1.1(b)(2) more than minimal planning increase because there “was nothing spontaneous” about defendant’s crime, which involved the deliberate opening of a fraudulent account, using a false name, and holding the account with false identification. The Tenth Circuit reversed, ruling that defendant’s conduct reflected nothing more than the planning necessary to commit bank fraud in its simplest form. Fraud is a specific intent crime. Bank fraud requires that the fraud be achieved through “a scheme or artifice” that is “executed” by the defendant. If the elements of the crime include the obtaining of funds “by means of false or fraudulent pretenses,” then defendant’s use of her sister’s identification did not constitute anything more than the minimal planning necessary to “execute” a scheme or artifice to obtain those funds. Since defendant could not have committed bank fraud unless she actually obtained money, the fact that she returned the next day to obtain the starter checks was nothing more than the minimum conduct required to establish bank fraud. U.S. v. Archuletta, 231 F.3d 682 (10th Cir. 2000).

10th Circuit says bleeding, headache, swelling, bruises, cuts and lumps to face were bodily injury. (160) Defendant argued that the carjacking victim’s injuries were not “significant” and thus did not rise to the level of a “bodily injury” under the guidelines. Note 1(b) to § 1B1.1 defines bodily injury as “any significant injury; e.g. an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought.” A “significant” injury “need not interfere completely with the injured person’s life but cannot be wholly trivial and, while it need not last for months or years, must last for some meaningful period.” U.S. v. Perkins, 132 F.3d 1324, 1326 (10th Cir. 1997). In the present case, the victim sustained bleeding and a severe headache from the half a dozen blows to the head he received, as well as swelling, bruises, cuts and lumps on his face. Because these injuries were clearly “painful and obvious” the Tenth Circuit held that the district court did not err in finding that the incident involved bodily injury. U.S. v. Brown, 200 F.3d 700 (10th Cir. 1999).

10th Circuit agrees that stolen check scheme involved more than minimal planning. (160) Halladay asked defendant to help her cash a stolen check. Hill instructed Halladay to forge the name of the payee and then endorse the check to him. After depositing the stolen check in his own checking account, defendant made five withdrawals from the account over a period of about 10 days. The Tenth Circuit upheld a § 2F1.1(b)(2)(A) enhancement for more than minimal planning because the criminal conduct involved repeated acts over a period of time. The scheme was developed over a period of two days during a phone conversation and an in-person meeting between defendant and Halladay. The scheme was then executed over a period of about 10 days by Halladay endorsing the check, defendant endorsing the check and depositing into his account, defendant checking with the bank to see if the check had cleared, defendant making a series of withdrawals, and defendant distributing the cash to his co-conspirators. U.S. v. Hill, 197 F.3d 436 (10th Cir. 1999).

10th Circuit says pointing gun and holding victims at gunpoint was “otherwise using” firearm. (160) Defendant, carrying a handgun with a laser sight, entered a post office with an accomplice. While the accomplice jumped behind the counter to take money, defendant ordered the customers and clerks to the floor, pointing the gun at them. The Tenth Circuit upheld a six-level enhancement for “otherwise using a firearm” under § 2B3.1(b)(2)(B), based on defendant pointing a gun at the victims and holding them at gunpoint. Note 1(g) to § 1B1.1 defines “otherwise used” as conduct that “did not amount to the discharge of the firearm but was more than brandishing, displaying, or possessing a firearm.” Previous cases have held a firearm is otherwise used where the defendant pointed a gun at the head of the victim and threatened her, and then pointed the gun at another victim while ordering him to open a safe and provide money. The current case was sufficiently similar to fall into the same category. U.S. v. Rucker, 178 F.3d 1369 (10th Cir. 1999).

10th Circuit applies more than minimal planning enhancement for repeated acts. (160) Defendant presented a document to the U.S. Marshal’s Office which falsely indicated that he had prevailed in a civil action against a bank, when in fact, the action had been dismissed. This document, titled “Special Execution and Order,” indicated that the lawsuit entitled him to possession of certain real property. The Tenth Circuit agreed that defendant’s repeated acts warranted a more than minimal planning enhancement. Defendant took a form from the U.S. Attorney’s office and adopted it into his Special Order and Execution document, complete with detailed property descriptions; he presented the document to the district court clerk’s office and convinced a deputy clerk to sign it; he then submitted the document to the U.S. Marshal’s Office and, after he was informed he needed additional money for processing fees, he had another person resubmit the document three weeks later with the proper fees. He followed this up with a telephone call to the Marshal’s Office, a letter to the district judge who had presided over his civil case, and a letter to the U.S. Marshal demanding action on the seizure. U.S. v. Ensminger, 174 F.3d 1143 (10th Cir. 1999).

10th Circuit finds more than minimal planning enhancement for repeated fraudulent forms. (160) Defendant injured his back while working for the Bureau of Prisons and was awarded disability benefits. For several years, he failed to report to the workers compensation office modest amounts of income that he earned as a result of his self-employment. Defendant challenged a more than minimal planning enhancement, saying that the government sent him forms, and he merely completed and returned them in a “purely opportune” fashion. He further contended that the government “stacked” charges against him by requiring him to repeatedly fill out the forms over several years. The Tenth Circuit upheld the more than minimal planning enhancement. There was no evidence that the workers compensation office was engaged in a “nefarious scheme to ensnare” defendant. The fact that defendant simply responded to questions did not render the statements “purely opportune.” U.S. v. Henry, 164 F.3d 1304 (10th Cir. 1999).

10th Circuit holds gunshot victim who required minor eye surgery suffered serious bodily injury. (160) Defendants racially taunted and then chased 3 black men in a car. The chase ended when one of the defendants fired a gun several times into the rear window of the victims’ car, shattering the window and injuring the occupant of the back seat. The victim had holes in his shirt and baseball cap consistent with either shotgun pellets or fragmented bullets. Several pellets lodged in his face and back. A metal fragment was removed from his eye in an outpatient surgical procedure. As a result of the shooting, the victim’s retina was permanently scarred. He has a permanent spot in his field of vision, experiences blurriness, and has an increased risk of retinal detachment. The Tenth Circuit held that the gunshot victim suffered serious bodily injury, even though the surgery lasted only 5-10 minutes and was done on an outpatient basis. It was still surgery. There is no temporal limitation on seriousness. In addition, the victim had residual damage that impaired a bodily organ¾his eye. U.S. v. Woodlee, 136 F.3d 1399 (10th Cir. 1998).

10th Circuit says small laceration and bruising with neck and shoulder pain were bodily injury. (160) Defendant committed an armed bank robbery. The bank’s 63-year old security guard sustained a head injury resulting in a “small laceration and bruising” that required medical attention costing $418.75. The security officer experienced continued neck and shoulder pain for which he sought chiropractic treatment. The Tenth Circuit affirmed a § 2B3.1(b)(3) bodily injury increase based on the security guard’s injuries. Note 1(b) to § 1B1.1 defines bodily injury as any significant injury, e.g. an injury that is painful and obvious or is of a type for which medical attention ordinarily would be sought. It would have been more helpful and prudent for the government to provide more detailed information concerning the medical treatment the guard received. Nevertheless, the enhancement was proper because it was undisputed that the guard sustained visible and lingering injuries of a type courts have found to constitute bodily injury. U.S. v. Perkins, 132 F.3d 1324 (10th Cir. 1997).

10th Circuit holds minimal planning increase for embezzlement was not double counting. (160) Defendant embezzled over $81,000 from her former employer. Then, in the present case, she embezzled $131,794 from a new employer, some of which she used to make restitution to her former employer. She was convicted of three counts of uttering forged checks and three counts of money laundering. She conceded that her repeated acts of uttering forged documents constituted more than minimal planning under § 2F1.1(a)(2), but argued that this enhancement constituted double counting. The Tenth Circuit found no double counting problem. The fact that money laundering could also have been the basis for the enhancement was irrelevant because there were also repeated acts over a period of time. Congress intended to impose separate punishments for money laundering and for the underlying criminal activity. U.S. v. Allen, 129 F.3d 1159 (10th Cir. 1997).

10th Circuit affirms dangerous weapon enhancement for assault with firewood. (160) Defendant assaulted his girlfriend with a piece of firewood. When the girlfriend’s father attempted to intervene, defendant threw the firewood at the father, putting out his right eye. The Tenth Circuit affirmed a § 2A2.2(b)(2)(B) enhancement for using a dangerous weapon in the course of an aggravated assault. The guidelines define dangerous weapon as an instrument capable of inflicting death or serious bodily injury. There was no question that the piece of firewood qualified as a dangerous weapon since it was used to inflict serious bodily injury. The district court did not impermissibly double count by relying upon the weapon to categorize the assault as an aggravated assault and to increase the base offense level. Because the assault resulted in a serious bodily injury, note 1 to § 2A2.2 required it to be treated as an aggravated assault. The fact that the assault also involved a dangerous weapon made little difference because the assault was aggravated even without regard to the dangerous weapon. U.S. v. Tissnolthtos, 115 F.3d 759 (10th Cir. 1997).

10th Circuit upholds aggravated assault guideline where assault caused serious bodily injury. (160) Defendant was convicted of two counts of assaulting federal officers, in violation of 18 U.S.C. § 111. He argued that the district court should have sentenced him under § 2A2.4 rather than § 2A2.2. The Tenth Circuit ruled that defendant was properly sentenced under § 2A2.2 because he caused serious bodily injury. One of the prison officers testified he suffered extreme pain and impaired function in his leg, which injury required hospitalization and physical rehabilitation. This supported the court’s finding of serious bodily injury. U.S. v. Segien, 114 F.3d 1014 (10th Cir. 1997), abrogation on other grounds recognized by U.S. v. Hathaway, 318 F.3d 1001 (10th Cir. 2003).

10th Circuit finds more than minimal planning for advance planning to mislead bank inspector. (160) Defendant borrowed money from a bank to finance his farming and ranching activities. The loan was secured by defendant’s cattle, crops, farm, and equipment. Defendant showed a bank inspector a herd of about 464 head of cattle, most of which he did not did not own. The Tenth Circuit agreed that the offense involved more than minimal planning. Defendant planned in advance to mislead the inspector, taking him to several different locations, and subsequently concealed the misrepresentations. U.S. v. Copus, 110 F.3d 1529 (10th Cir. 1997).

10th Circuit holds that check kiting scheme involved more than minimal planning. (160) Defendant used a check kiting scheme to artificially inflate his company’s bank accounts. He challenged a more than minimal planning enhancement, since by its very nature, a check kiting scheme cannot be completed with a single check. Thus, he asserted that the repeated acts basis for the enhancement could never be applied to a check kiting scheme. The Tenth Circuit found this argument specious. Defendant’s scheme involved extensive record keeping and deposits of 298 insufficient fund checks from out of state banks for more than a month. The scheme involved more than minimal planning. U.S. v. Orr, 68 F.3d 1247 (10th Cir. 1995).

10th Circuit find no double counting in increases for special skills, sophistication and planning. (160) Defendant argued that it was improper double counting to enhance his sentence for sophisticated means under § 2T1.3(b)(2), more than minimal planning under § 2F1.1(b)(2)(A), and special skills under § 3B1.3. The Tenth Circuit disagreed. First, defendant was sentenced alternatively under § 2T1.3 and 2F1.1. Therefore, the sophisticated means enhancement could not be considered with the more than minimal planning enhancement. Second, the enhancements each serve a different purpose. The purpose of the special skills enhancement is to punish criminals who use their special talents to commit crime. In contrast, the sophisticated means and more than minimal planning enhancements are designed to target criminals who engage in complicated criminal activity. Their actions are more blameworthy than the actions of a perpetrator of a simple crime. U.S. v. Rice, 52 F.3d 843 (10th Cir. 1995).

10th Circuit holds tax fraud involved more than minimal planning, but not sophisticated means. (160) For three tax years, defendant claimed on his Form 1040 that more money had been withheld by his employer than he owed in taxes. The district court sentenced defendant alternatively under § 2F1.1 and § 2T1.3. The Tenth Circuit rejected a sophisticated means enhancement under § 2T1.3(b)(2), but upheld a more than minimal planning enhancement under § 2F1.1(b)(2)(A). The tax evasion scheme was not sophisticated. Defendant merely claimed to have paid withholding taxes he did not pay. The fraud was the functional equivalent to claiming more itemized deductions than actually paid. However, the scheme did involve more than minimal planning. Defendant’s actions, which took place over a three-year period, were more calculated than simply failing to report income. U.S. v. Rice, 52 F.3d 843 (10th Cir. 1995).

10th Circuit holds that two instances of behavior are not “repeated acts” for more than minimal planning. (160) Burglars entered an Army building through a broken window and took various items. Eleven days later, a second burglary took place at the same location, with the burglars breaking the same window. Defendant pled guilty to charges stemming from the second burglary. The district court imposed an enhancement for more than minimal planning under § 2B1.1(b)(5), relying solely on the fact that defendant had “repeated” the act twice. The 10th Circuit reversed, holding that two instances of behavior, by themselves, are not “repeated acts” for purposes of the more than minimal planning enhancement. The court also rejected the PSR’s suggestion that more planning than was typical was involved in this offense. The mere fact that defendant concluded after the first burglary that a second burglary would be profitable did not establish the requisite degree of planning. U.S. v. Bridges, 50 F.3d 789 (10th Cir. 1994).

10th Circuit agrees that unnecessary surgery resulted in serious bodily injury. (160) Defendant, a doctor, was convicted of mail fraud for having performed unnecessary surgery pursuant to a fraudulent double billing scheme. The 10th Circuit upheld an enhancement under § 2F1.1(b) (4) for an offense involving serious bodily injury. Defendant performed a tubal ligation on a patient four weeks after he delivered her child by caesarian section. Because of the second operation, the patient developed a distended abdomen and had to be hospitalized a third time. Normally a tubal ligation is performed at the same time as the caesarian section, and there was no medical reason not to have performed the procedure when the caesarian was done. The evidence was sufficient to show that defendant postponed the tubal ligation pursuant to his fraudulent double billing scheme, and that this caused serious bodily injury to his patient. U.S. v. Laughlin, 26 F.3d 1523 (10th Cir. 1994).

10th Circuit holds that insurance fraud involved more than minimal planning. (160) Defendant was convicted of mail fraud based on insurance claims she and her husband made after their business was destroyed by arson. The 10th Circuit held that the fraud involved more than minimal planning. The record showed an elaborate preparation of the forms and estimates necessary to submit the claim under the residential insurance policy. The claim included many items that the jury and the court could have concluded were not actually lost in the fire. The scheme evolved over a significant period of time. Defendant initially reported the loss of some personal items the day after the fire. Over a month later, she submitted a much more extensive claim. U.S. v. Yost, 24 F.3d 99 (10th Cir. 1994).

10th Circuit holds that enhancements for violation of judicial order, more than minimal planning and vulnerable victims were not double counting. (160) Defendant fraudulently solicited investments from his tax clients, many of whom were retirees and unsophisticated investors. The 10th Circuit upheld enhancements for more than minimal planning under section 2F1.1(b)(2)(A), for vulnerable victims under section 3A1.1, and for violating a judicial or administrative order under section 2F1.1(b)(3)(B). The more than minimal planning enhancement was proper because the case involved repeated acts over a period of time. The vulnerable victim enhancement was proper since defendant preyed on elderly, inexperienced investors who were particularly reliant on these funds for their retirement. The additional enhancement for violating a Oklahoma cease and desist order was not double counting, because the enhancements involved here were distinct, did not necessarily overlap, and served different purposes. U.S. v. Lowder, 5 F.3d 467 (10th Cir. 1993).

10th Circuit affirms that embezzlement involved more than minimal planning. (160) Defendant, the comptroller for a business, added commission checks to the business’s normal bank deposit tickets and withdrew an equivalent amount of cash, thus keeping the total amount of the deposit the same. She then failed to record the business’s receipt of the commission checks. The 10th Circuit affirmed that the embezzlements involved more than minimal planning under section 2B1.1(5). Defendant had access to the commission checks and concealed them until the time was right to make the switch for cash on the deposit slips. These actions involved repeated acts and required planning over an extended period of time. U.S. v. Chimal, 976 F.2d 608 (10th Cir. 1992).

10th Circuit affirms that doctor’s Medicare/Medicaid fraud involved more than minimal planning. (160) Defendant, a doctor, committed numerous acts of fraud involving Medicare and Medicaid. The 10th Circuit affirmed that his offense involved more than minimal planning under guideline section 2F1.1. Defendant submitted numerous false billings involving many different patients, and his fraudulent practices were aimed at three different federal programs with distinct billing procedures, different regulations, and coverage for different services. The nature of the fraud varied: some billings were for services not performed at all, some for services done by a different provider, and some for services claimed to have been performed when in fact others were performed. His staff was directed to file false claims, and threatened with job loss if they did not do so. U.S. v. Abud-Sanchez, 973 F.2d 835 (10th Cir. 1992), appeal after remand, 996 F.2d 312 (10th Cir. 1993).

10th Circuit upholds more than minimal planning enhancement for six embezzlements by bank employee. (160) On six different occasions, defendant, a customer services officer at a bank, represented to elderly bank customers that she would take their deposit slips to a teller for deposit in the customer’s account. Instead, she deposited the funds into accounts within her control. The 10th Circuit upheld an enhancement for more than minimal planning under section 2B1.1(b)(5). Under application note 1 to section 1B1.1, more than minimal planning is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Here, the district court heard evidence that five different dates were involved, and that each occasion involved repetition of essentially the same conduct. U.S. v. Lee, 973 F.2d 832 (10th Cir. 1992).

10th Circuit affirms that two embezzlements by military pay technician involved more than minimal planning. (160) Defendant, a military pay account technician, fraudulently manipulated the automated pay system, causing two different checks to be issued to a friend. The 10th Circuit affirmed that the offenses involved more than minimal planning. To complete the embezzlements, defendant was required to access and make computer entries on the friend’s master military pay account. Next, using a second access code, defendant had to access a second computer in the payroll areas to cause the check to be issued. Last, he needed to complete several items of paperwork for each transaction. Defendant’s embezzlement transpired over a period of six months and involved numerous computer entries. Finally, defendant’s use of another pay clerk’s initials to conceal his own criminal activities were significant steps taken to conceal the embezzlements. U.S. v. Williams, 966 F.2d 555 (10th Cir. 1992).

10th Circuit affirms upward departure based upon more than minimal planning and obstruction of justice. (160) Defendant pled guilty to making a false statement in a passport application. The court increased the offense level by two for “more than minimal planning,” and by two additional points because the offense had been committed to escape detection for other crimes, and thus was an attempt to obstruct justice. The 10th Circuit affirmed, although it found that the sentence in fact was a departure from the guidelines. Although several guidelines contain a two-point enhancement for more than minimal planning, guideline § 2L2.4 does not. Similarly, the court did not adjust defendant’s sentence based upon obstruction of justice under guideline § 3C1.1, since this concerns attempts to obstruct the investigation of the instant offense. However, both were proper grounds for an upward departure. Guideline § 2L2.4 was intended to be used for illegal aliens convicted of fraudulently acquiring passports to enter or remain in the country. The sentencing commission did not contemplate its use in sentencing citizens who engage in a more serious offense by fraudulently acquiring a passport to avoid prosecution. U.S. v. Strickland, 941 F.2d 1047 (10th Cir. 1991).

10th Circuit rejects upward departure based on more than minimal planning and victim vulnerability. (160) The district court departed upward because it found that defendant’s offense involved more than minimal planning and a vulnerable victim. The 10th Circuit reversed, finding that the district court failed to explain why the guidelines did not adequately take these factors into consideration. The district court “departed” by increasing defendant’s offense level by four, which suggested that the court assessed two levels for each cited factor–the same offense level increase prescribed by the guidelines. Moreover, the circumstances did not justify a vulnerable victim adjustment under guideline § 3A1.1. An elderly woman is not per se a vulnerable victim. The victim’s mental condition was normal, and the record was silent as to defendant’s motivation in selecting this particular victim. The label “elderly” is too vague, by itself, to provide a basis for an unusual vulnerability finding. U.S. v. Smith, 930 F.2d 1450 (10th Cir. 1991).

10th Circuit finds that use of stolen credit card on 15 separate occasions involved more than minimal planning. (160) Defendant’s brother and his brother’s girlfriend were U.S. Postal Service employees who took credit cards from the mails and gave them to family and friends. Defendant personally used “his” stolen card 15 times in 15 different locations during a one month period. Each purchase involved “several calculated falsehoods including a forged signature.” The 10th Circuit concluded that the district court’s determination that defendant’s offense involved more than minimal planning was not clearly erroneous. The 10th Circuit also rejected defendant’s argument that he was a minor participant. Defendant was not convicted of conspiracy, he pled guilty only to his own fraudulent use of the card. Therefore, he was solely responsible for his crime. Moreover, defendant clearly had knowledge of his brother’s and his wife’s activities with respect to the credit cards. He even recruited his wife to become involved in the scheme. U.S. v. Sanchez, 914 F.2d 206 (10th Cir. 1990).

10th Circuit finds that district court need not make factual findings where defendant did not challenge presentence report. (160) Defendant argued that it was improper for the district court to determine that defendant’s offense involved more than minimal planning because the court had failed to make any factual findings. The presentence report had recommended an increase for more than minimal planning based upon defendant’s procurement and use of bolt cutters, defendant’s ability to avoid an alarm system, and defendant’s knowledge of which two of fifty trailers to burglarize. Defendant did not challenge these facts, but simply asserted that the burglary did not involve any special knowledge. The 10th Circuit held that since defendant did not challenge the factual accuracy of the presentence report, the district court was not obligated to reduce its factual findings to writing. The 10th Circuit also found that the factors listed in the presentence report evidenced that defendant’s offense involved more than minimal planning. U.S. v. Johnson, 911 F.2d 403 (10th Cir. 1990).

11th Circuit agrees that health care fraud involved more than minimal planning. (160) Defendants were convicted of charges stemming from a conspiracy to submit false claims to the Civilian Health and Medical Program of Uniformed Services (CHAMPUS) and Medicare. The Eleventh Circuit agreed that the scheme involved more than minimal planning. The offenses occurred over a two-year period at two facilities and involved the treatment of numerous patients covered by CHAMPUS and Medicare. Unquestionably, it involved repeated acts over a period of time, none of which was merely opportune. U.S. v. Renick, 273 F.3d 1009 (11th Cir. 2001).

11th Circuit cumulates enhancements for more than minimal planning and sophisticated means. (160) Deciding an issue of first impression among the circuits, the Eleventh Circuit held that the enhancement for more than minimal planning under § 2F1.1(b)(2)(A) is to be applied cumulatively and not in the alternative to the enhancement for sophisticated means in subsection (b)(5)(C). The court noted that more than minimal planning does not necessarily involve sophisticated means. However “[a] defendant who uses sophisticated means will always receive, in addition, an enhancement for more than minimal planning.” The defendant here engaged in a complicated embezzlement scheme and it was proper to increase his sentence based on both enhancements. U.S. v. Humber, 255 F.3d 1308 (11th Cir. 2001).

11th Circuit holds that thefts by armed security guard involved more than minimal planning. (160) Defendant, an armed security guard, was assigned to accompany Brinks armored cars during the pick-up and delivery of bank deposits. One day, while the other guard working with him was absent, defendant removed $20,000 from an unsealed money bag and placed the money in his lunch box. Twenty days later, while working as the only security guard in the back of the car, defendant broke the seal on a money bag, removed $70,000 in currency, and placed the money in his lunch box. He had somehow gotten an unbroken seal in advance, and when the armored car arrived at the Brinks office, he obtained a crimper and used it to place the unbroken seal on the bag. The Eleventh Circuit affirmed a more than minimal planning enhancement under § 2B1.1(b)(4)(A). Defendant’s actions in the two thefts showed more planning that is required for the crime in its simplest form, and he took affirmative steps to conceal his offense. In preparation for the second theft, he somehow obtained a seal. When he got to the Brinks office, he got a crimper from inside the office, and used it to place the seal on the bag, in an attempt to prevent anyone from noticing the unsealed bag. Moreover, defendant did not commit a single theft, but two thefts on separate occasions. U.S. v. Ward, 222 F.3d 909 (11th Cir. 2000).

11th Circuit applies enhancement where defendant simulated possession of dangerous weapon. (160) Defendant robbed a bank while unarmed. During the robbery, he threatened the teller, and then simulated the possession of a dangerous weapon by reaching into his pants waist band. The district court imposed a three-level enhancement under § 2B3.1(b)(2)(E) for brandishing, displaying or possessing a dangerous weapon. Defendant argued that the enhancement cannot be applied without the presence of an actual weapon or object that could be perceived as a weapon. The Eleventh Circuit disagreed, holding that the dangerous weapon enhancement applies where the defendant simulates possession of what appears to be a dangerous weapon. The critical factor for application of § 2B3.1(b)(2)(E) is whether the defendant intended the appearance of a dangerous weapon. Because defendant’s hand simulated possession of what appeared to be a dangerous weapon, and the victim teller perceived defendant to possess a dangerous weapon, the enhancement was proper. U.S. v. Bates, 213 F.3d 1336 (11th Cir. 2000).

11th Circuit holds that co-conspirator “otherwise used” gun by carjacking and kidnapping motorist (160) Defendant and two armed accomplices took control of a bank and held 15 people captive by force and threats of violence. When police responded, one accomplice escaped by carjacking and kidnapping a motorist at gunpoint outside the bank. The district court applied a § 2B3.1(b)(2)(C) enhancement for brandishing a firearm; the government argued that defendant “otherwise used” the gun under § 2B3.1(b) (2)(B). The Eleventh Circuit held that the use of a firearm to make an explicit or implicit threat against a specific person constitutes “otherwise use” of a firearm. Here, it was undisputed that one co-conspirator escaped by carjacking and kidnapping an unsuspecting motorist who was outside the bank. The victim was held at gunpoint on the passenger side floorboard of the vehicle as the robber fled the scene. The action of the unidentified co-conspirator in carjacking and abducting a motorist at gunpoint was sufficient to constitute “otherwise use” of his firearm. U.S. v. Cover, 199 F.3d 1270 (11th Cir. 2000).

11th Circuit says pointing gun half-inch from robbery victim’s forehead was “otherwise using” weapon. (160) Defendant robbed a man at an automatic teller machine, taking cash and the victim’s car. In the course of the robbery, defendant held a .9 millimeter semi-automatic handgun about one-half inch from the victim’s forehead and pointed it at him. The Eleventh Circuit held that these facts constituted an “otherwise use” of the weapon, and not merely a brandishing of the weapon, thus warranting a six-level increase rather than a five-level increase under § 2B3.1(b)(2). Defendant’s conduct was more than brandishing because it involved more than merely pointing or waving the weapon about in a threatening manner. Cases from other circuits have applied the enhancement for conduct almost identical to defendant’s conduct. Although those cases also involved an explicit threat, defendant’s conduct here was equally coercive and threatening. U.S. v. Wooden, 169 F.3d 674 (11th Cir. 1999).

11th Circuit holds embezzlement from employee benefit plan involved more than minimal planning. (160) Defendant operated a company that administered self-funded health benefit plans for employers. He converted for his own use $295,359.90 that should have been used for one of his client’s health plans. He also fraudulently acquired two banks loans. The Eleventh Circuit found that defendant’s crimes warranted a more than minimal planning enhancement. His embezzlements occurred over a period of nearly five years, and constituted “repeated acts over a period of time” that were not merely opportune. Defendant also committed two acts of bank fraud. This by itself may have justified the enhancement. U.S. v. Daniels, 148 F.3d 1260 (11th Cir. 1998).

11th Circuit holds that more than minimal planning enhancement can apply to embezzlement offenses. (160) Defendant, an assistant vice president and branch manager of a bank, embezzled over $100,000 from her employer. She initially took out a $75,000 loan in the name of an actual customer, pledged that customer’s savings account as collateral and pocketed the proceeds. Two months later she repeated the process and embezzled another $19,000. Two months after that, she embezzled another $15,000. The district court found that a more than minimal planning enhancement would be redundant because embezzlement necessarily entails a certain amount of planning. The Eleventh Circuit held that the district court erred as a matter of law in refusing to apply a more than minimal planning enhancement. Note 1(f) to § 1B1.1 clearly contemplates that the more than minimal planning enhancement is intended to apply to embezzlement cases such as this one. It is hard to imagine a scenario in which obtaining even one fraudulent loan would not require more than minimal planning. The other factors relied on by the court (the victim did not want defendant incarcerated, society would not gain from defendant’s incarceration, and defendant did not deserve more punishment) were irrelevant to the more than minimal planning inquiry. U.S. v. Bush, 126 F.3d 1298 (11th Cir. 1997).

11th Circuit holds psychological injury alone cannot support bodily injury increase. (160) Defendant robbed a bank at gunpoint. Although no one was physically injured during the robbery, defendant pointed his gun at a teller’s head and fired a shot at a group of customers pursuing him as he fled. The bank teller who gave defendant the money testified that the experience had made her more observant and would stay with her the rest of her life. Another teller testified that she lost two nights of sleep and continued to feel vulnerable. However, neither teller sought medical or psychological treatment. The Eleventh Circuit held that psychological injury alone could not support a § 2B3.1(b)(1) bodily injury enhancement. Note 1(b) to § 1B1.1 defines bodily injury as “any significant injury; e.g. an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought. This language, when read in connection with the departure authorized by § 5K2.3 for “extreme psychological injury,” is a clear indication that psychological injury is not sufficient to warrant the enhancement. U.S. v. Sawyer, 115 F.3d 857 (11th Cir. 1997).

11th Circuit says more than minimal planning and leadership enhancements are not double counting. (160) Defendant managed and operated a telemarketing scam. He argued that the cumulative application of the more than minimal planning enhancement of § 2F1.1(b)(2) and the managerial enhancement of § 3B1.1(b) constituted improper double counting. The Eleventh Circuit disagreed. Double counting a factor during sentencing is permitted if the Sentencing Commission intended that result and each guideline section concerns conceptually separate notions relating to sentencing. Nothing in § 2F1.1 or § 3B1.1 suggests an intent not to apply the sections cumulatively. In addition, the two enhancements address different considerations. The more than minimal planning enhancement describes the complexity of the overall scheme. The leadership enhancement addresses the offender’s role within the group of co-conspirators. A November 1993 amendment to note 4 of § 1B1.1 also shows the Commission’s intent to apply the enhancements cumulatively. U.S. v. Stevenson, 68 F.3d 1292 (11th Cir. 1995).

11th Circuit holds that attack on informant did not involve more than minimal planning. (160) Defendant and other inmates at a county jail beat up another prisoner when they learned he was to testify against a mutual friend. The Eleventh Circuit held that the attack did not involve more than minimal planning. Defendant did not formulate a sophisticated plan or an elaborate scheme. Although he made a phone call to determine whether the victim intended to testify against the friend, the phone call was made immediately prior to the attack. Further, defendant took no steps to conceal the crime from jail officials and the crime did not involve repeated acts over time. U.S. v. Tapia, 59 F.3d 1137 (11th Cir. 1995).

11th Circuit agrees that defense contractor’s fraud involved more than minimal planning. (160) Defendant, the general manager of a defense contractor, used false documents to obtain payments on government contracts that defendant knew his company had not performed to military specifications. The Eleventh Circuit agreed that the fraud involved more than minimal planning. First, defendant took affirmative steps to conceal the offense. Defendant altered certification forms from other contracts to conceal the substitution of nonconforming materials. Second, the charged acts involved numerous contracts spanning a 4 1/2 year period. Although defendant was acquitted of some of these acts, the district court could properly consider this conduct, as long as the government proved them by a preponderance of the evidence. U.S. v. Cannon, 41 F.3d 1462 (11th Cir. 1995).

11th Circuit holds robbery victims forced into safe room and ordered to lie on floor were physically restrained. (160) Defendants robbed a bank. They forced bank employees and customers at gunpoint into the safe room and ordered them to lie on the floor with their faces down. The 11th Circuit held that defendants physically restrained the victims under § 2B3.1(b)(4)(B). Defendants restricted their victims’ mobility and capacity to observe events to facilitate the robbery. Although no threats were made, the obvious presence of handguns ensured the victims’ compliance and effectively prevented them from leaving the room for a brief period while the robbers fled the scene. U.S. v. Jones, 32 F.3d 1512 (11th Cir. 1994).

11th Circuit holds that interstate thefts involved more than minimal planning. (160) Defendant was involved in a conspiracy to steal trucks containing frozen seafood, which the conspirators then resold. The 11th Circuit affirmed an enhancement under § 2B1.2(b)(3)(B) for more than minimal planning. The conspirators engaged in repeated acts over a period of time as they frequently searched for tractor trailers loaded with seafood, stole several tractor trailers, hid them in a warehouse, and then fenced the stolen merchandise. The use of an abandoned warehouse to secrete the stolen trucks showed that the thefts were deliberate. U.S. v. Garcia, 13 F.3d 1464 (11th Cir. 1994).

11th Circuit holds that tear gas is a dangerous weapon. (160) After robbing a bank, defendant sprayed tear gas as the victims were lying face down on the floor of the bank. The 11th Circuit upheld an enhancement under § 2B3.1(b)(2)(D), holding that tear gas is a dangerous weapon under § 1B1.1. “Dangerous weapon” is defined as “an instrument capable of inflicting death or serious bodily injury.” Serious bodily injury means an injury involving extreme physical pain or the impairment of a function of a bodily member, or requiring medical intervention. All the victims suffered a burning sensation in their faces and throats and some experienced eye pain and severe headaches. One woman was hit near the left eye with the tear gas. Two of the woman were visibly pregnant, and pregnant women should not be exposed to tear gas. U.S. v. Dukovich, 11 F.3d 140 (11th Cir. 1994).

11th Circuit holds that transportation of stolen autos involved more than minimal planning. (160) Over a 30-day period, defendant purchased three vehicles with three worthless checks, and then transported the vehicles over state lines. He then sold the vehicles as new from his own dealership. The 11th Circuit upheld a more than minimal planning enhancement under section 2B1.2(b)(4)(B). The unlawful conduct was not purely opportune. Prior to transporting the cars over state lines, defendant had to identify a dealer who had the car he was looking for, obtain a price, take delivery of the car, and then transport the cars over state lines. These premeditated acts committed prior to the commission of the offense showed more than minimal planning. U.S. v. Mullins, 996 F.2d 1170 (11th Cir. 1993).

11th Circuit holds that BB gun that appears to be a firearm is not a firearm but a dangerous weapon. (160) Defendant used a BB gun to commit an armed robbery. The gun appeared to be, and the victim perceived the gun to be, a firearm. The November 1991 version of section 2B3.1(b)(2) provides for a five-level enhancement for a robbery defendant who uses a firearm, but a three-level enhancement for a defendant who uses a dangerous weapon. The 11th Circuit held that a BB gun that looks like a real firearm and is perceived by the robbery victim to be a firearm is not a firearm for enhancement purposes under section 2B3.1(b)(2)(C); it is a dangerous weapon under section 2B3.1(b)(2)(E). Note 1(e) to section 1B1.1 specifically excludes a BB gun from the definition of a firearm. If the Sentencing Commission had intended to have appearances count over reality for “firearm” definition purposes, it would have said so, as it did for “dangerous weapon” definition purposes. U.S. v. Koonce, 991 F.2d 693 (11th Cir. 1993).

11th Circuit affirms dangerous weapon enhancement for possession of toy gun. (160) Defendant was apprehended as he attempted to rob a bank. A toy gun which resembled an actual weapon was found in his pocket. He received an enhancement under section 2B3.1(2)(C) which applies “if a dangerous weapon (including a firearm) was brandished, displayed or possessed.” Application note 1(d) of section 1B1.1 provides that where an object that appeared to be a dangerous weapon was brandished, displayed or possessed, treat the object as a dangerous weapon.” Defendant conceded that a court could characterize a toy gun which is brandished or displayed as dangerous, but contended that a toy gun which is merely possessed is not dangerous. The 11th Circuit upheld the enhancement based upon defendant’s possession of the toy gun. If a court finds that a particular toy gun is possessed by a defendant and “appears” to be a dangerous weapon if displayed, that is sufficient. Senior Judge Roney dissented. U.S. v. Shores, 966 F.2d 1383 (11th Cir. 1992).

11th Circuit holds that nineteen postal thefts involved “more than minimal planning.” (160) The commentary to 2B1.1(b)(4) states that “‘[m]ore than minimal planning’ is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune.” The Eleventh Circuit held that, given this standard, the district court was not clearly erroneous in determining that the series of nineteen postal thefts committed by defendant involved more than minimal planning. U.S. v. Scroggins, 880 F.2d 1204 (11th Cir. 1989).

D.C. Circuit holds that repeated acts in fraudulent loan case were not purely opportune. (160) The district court applied a more than minimal planning increase based on repeated acts that were not purely opportune. See Note 1(f) to USSG § 1B1.1. Satisfaction of the repeated acts criterion requires at least three acts over a period of time. See U.S. v. Kim, 23 F.3d 513 (D.C. Cir. 1994). The D.C. Circuit found at least three deliberate acts by defendant that supported the more than minimal planning increase. In September 1993, defendant submitted a loan application that falsely understated her liabilities. In October 1993, defendant submitted a letter from one of her company’s suppliers, which defendant altered to falsely state the amount of waste paper they expected to provide to defendant’s company. In November 1993, at the loan closing, defendant signed a certification falsely stating that there had been no substantial adverse change since the original application, when in fact the supplier had decided to stop using defendant’s company. These acts were not “purely opportune.” Defendant initiated the loan application and had ample time to contemplate the financial data she included. Altering the supplier’s letter require defendant to take a series of component steps, each evincing deliberation. Finally, the supplier’s decision to stop using defendant’s company was made several days before the loan closing, and defendant was aware that the supplier’s projection was critical to the bank. U.S. v. McCoy, 242 F.3d 399 (D.C. Cir. 2001).

D.C. Circuit says photo of gun pointed at victim combined with phoned threat constituted “use” of gun. (160) Defendants informed the kidnapping victim’s mother that her son was in custody and would be tortured or killed unless she paid a ransom. During a subsequent phone call, the mother was directed to a photo that showed the son blindfolded with a gun held to his head. The D.C. Circuit held that the pointing of a gun at the victim’s head, combined with the threat to the victim’s safety directed at his mother, constituted “use” of a firearm under §1B1.1, note 1(g), and § 2A4.1(b)(3). Virtually 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 accompanies the pointing of the weapon, an enhancement for the use of the weapon is justified. The key consideration is whether the 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. The fact that in the present case the gun and the threats were directed at two different people in two different locations at two different times did not diminish the culpable “use” at issue. U.S. v. Yelverton, 197 F.3d 531 (D.C. Cir. 1999).

D.C. Circuit holds that two-month check kiting scheme involved more than minimal planning. (160) Defendant, the officer and director of a bank, engaged in a check-kiting scheme that exploited his checking privileges at the bank. The D.C. Circuit agreed that the two-month scheme involved more than minimal planning. The facts did not support defendant’s contention that each instance of check-kiting was opportunistic. Defendant did not identify any fortuitous circumstances that prompted him to act. Given the two-month duration of the scheme and the fact that no check ever “bounced” when his $71,000 overdraft position was discovered, the enhancement was proper. U.S. v. Broumas, 69 F.3d 1178 (D.C. Cir. 1995).

D.C. Circuit says more than minimal planning and abuse of trust are not double counting. (160) Defendant, an attorney for the Bureau of Veterans’ Appeals, tampered with files to reduce his workload. He argued that a more than minimal planning enhancement and an abuse of trust enhancement penalized him twice for the same conduct. The D.C. Circuit held that the two enhancements were not double counting because they entailed different elements. Defendant’s crime clearly involved significant planning. In 32 of 38 cases, defendant removed and destroyed documents from the files, picking out those papers needed for the appeal to go forward. Defendant also clearly held a position of public trust and abused it. His job was to provide legal advice to the Board on the merits of the appeal assigned to him. The two enhancements were separate. An individual who holds a position of trust does not necessary engage in more than minimal planning when he destroys documents in a public office. U.S. v. Gottfried, 58 F.3d 648 (D.C. Cir. 1995).

D.C. Circuit gives “due deference” to district court’s application of guidelines to facts. (160) The district court found that defendant’s offense involved more planning than is typical. The D.C. Circuit held that the proper standard of review for the district court’s application of the guidelines to this set of facts (a “mixed question of law and fact”) was due deference. Congress created a trichotomy, rather than a dichotomy, for reviewing lower court’s actions: Purely legal questions are reviewed de novo; factual findings are to be affirmed unless “clearly erroneous”; and an appellate court must give “due deference” to the district court’s application of the guidelines to facts. Due deference presumably is meant to fall somewhere between de novo and “clearly erroneous.” It reflects a compromise between the need for uniformity in sentencing and the recognition that district courts should be afforded some flexibility in applying the guidelines to the facts before them. U.S. v. Kim, 23 F.3d 513 (D.C. Cir. 1994).

D.C. Circuit says “repeated acts” for more than minimal planning means at least three acts. (160) Defendant, a mortgage broker, assisted a client in obtaining a home equity loan without the consent of the client’s relatives who owned the home. On two occasions, defendant obtained blank power of attorney forms, had them notarized by a friend, and delivered them to the client, who forged his relatives names on the forms. The D.C. Circuit affirmed a more than minimal planning enhancement, but disagreed with the government’s claim that the two occasions on which defendant obtained the blank power of attorney forms were “repeated acts.” Repeated acts means at least three acts. However, the court deferred to the district court’s finding that the offense involved more planning than is typical for the commission of the offense in a simple form. Defendant knowingly filed the forged powers of attorney at a settlement meeting over a month after the initial loan application. These actions were separate from the application process. U.S. v. Kim, 23 F.3d 513 (D.C. Cir. 1994).

D.C. Circuit holds that “more than minimal planning” enhancement did not foreclose upward departure for concealment, duration of crime and disruption of government activities. (160) Defendant was convicted of theft of government funds, making a false claim against the government, and tax evasion. The D.C. Circuit upheld the trial court’s upward departure for concealment under § 5K2.9 and for “more than minimal planning” under sections 2B1.1 and 1F1.1 because the defendant’s “evasion of taxes to conceal his embezzlement scheme constituted a separate basis for an upward departure, distinct from the fact that his activities were well planned.” Likewise it was reasonable to depart based on the duration because defendant’s 53 separate acts of theft over a six year period were beyond that taken into account by the “more than minimal planning” section. Finally, defendants activities disrupted government functions under § 5K2.7, because it caused federal resources to be diverted from legitimate to illegitimate recipients. U.S. v. Burns, 893 F.2d 1343 (D.C. Cir. 1990), reversed on other grounds, Burns v. U.S., 501 U.S. 129, 111 S.Ct. 2182 (1991).

California District Court holds that “more than minimal planning” justified increase in theft guideline range. (160) The defendant pled guilty to possession of a $468 check stolen from the U.S. mail. In exchange, the government dismissed two counts charging him with possession and distribution of stolen mail and treasury checks. Two levels were added to the defendant’s base offense level due to the fact that “more than minimal planning” was involved to perpetrate the scheme, under § 2B1.2(b) (3)(B) of the guidelines. The court stated that since the guidelines permit consideration of acts and offenses which were part of the relevant conduct constituting the offense of conviction, the increase on these grounds was warranted. U.S. v. Ruelas-Armenta, 684 F.Supp. 1048 (C.D. Cal. 1988).

Commission requires courts to consider departures before granting a variance. (160) The Commission noted that most circuits already agree on a three-step approach, in which the court first computes the guideline range and then considers whether to depart from the guidelines before determining whether the applicable factors in 18 U.S.C. § 3553(a) justify a Booker “variance” from the guidelines. Nevertheless, to resolve a circuit conflict on this issue, the Commission amended guideline § 1B1.1 (application instructions) specifically to adopt the three-step approach, and to make it clear that departures are not “obsolete” as the Seventh Circuit has stated. Amendment 4, effective November 1, 2010).

Query	Gets the documents with
stock market	‘stock’ or ‘market’ or both
“stock market”	the phrase ‘stock market’
+stock +market	‘stock’ and ‘market’
+stock -market	‘stock’ but not ‘market’
+president -“United States”	‘president’ but not ‘United States’
(stock OR market) AND NOT president	‘stock’ or ‘market’, and without ‘president’