*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 2/13/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 95-1292

v. (D. Colorado)

JOSEPH L. VILLANUEVA, (D.C. No. 95-CR-83-1)

Defendant - Appellant.

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT and LOGAN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered

submitted without oral argument.

Defendant Joseph Louis Villanueva appeals the sentence imposed following his

plea of guilty to one count of armed bank robbery. We affirm.

BACKGROUND
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Both parties stipulated to the following facts: On February 13, 1995, Mr.

Villanueva stole a car and drove it to the Colorado National Bank branch in Littleton,

Colorado. As he entered the bank, he carried with him, tucked into the waistband of his

pants and concealed underneath his shirt, a replica of an 1851 Colt black-powder

revolver. The gun was in fact inoperable, because a cardboard tube filled the space where

the cylinder would be. 

Mr. Villanueva approached bank teller Andrea States, and, with his nose and

mouth covered with a bandanna, said “Come on, you know what to do.” R. Vol. 1, Tab 2,

at 2-3. When Ms. States reached for her alarm button, Mr. Villanueva said, “Don’t do

that,” and gestured toward the waistband of his pants. Id. at 3. Ms. States felt that the

statement and gesture indicated that Mr. Villanueva had a weapon and was threatening

her. Id. When Mr. Villanueva demanded her “hundreds and fifties,” Ms. States gave him 

$3600. Id. He was apprehended by the police as he drove away from the bank, and was

taken into the custody of the FBI. He confessed to stealing the car and robbing the bank. 

Mr. Villanueva pled guilty to the one count indictment charging him with armed

bank robbery, in violation of 18 U.S.C. § 2113(a) and (d). The parties stipulated that the

applicable guideline was United States Sentencing Commission, Guidelines Manual,

§2B3.1, with a base offense level of 20. There was a two-level increase pursuant to

§2B3.1(b)(1) because the property of a financial institution was taken. The parties 
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disagree on the issue before us: whether the gun replica was a “firearm” as defined in the

Application Notes to §1B1.1, thereby warranting a five-level increase in the base offense

level under USSG §2B3.1(b)(2)(C), or whether it was a “dangerous weapon,” thereby

warranting a three-level increase under USSG §2B3.1(b)(2)(E). The district court held a

sentencing hearing on the matter, and ultimately concluded that the replica was a

“firearm.” The court therefore increased Mr. Villanueva’s base offense level by five

levels and, after granting a three-level decrease for acceptance of responsibility, arrived at

a total offense level of 24. Because Mr. Villanueva’s criminal history category was III,

his sentencing range was 63 to 78 months. The district court sentenced him to 63 months

imprisonment, with five years of supervised release. Mr. Villanueva appeals his sentence,

arguing that the court erred in determining that the replica was a firearm for sentencing

purposes.

DISCUSSION

We review de novo the application of the sentencing guidelines. United States v.

McKneely, 69 F.3d 1067, 1078 (10th Cir. 1995). Mr. Villanueva pled guilty to armed

bank robbery under 18 U.S.C. § 2113(a) and (d). Section 2113(d) addresses robberies in

which the robber “assaults any person, or puts in jeopardy the life of any person by the

use of a dangerous weapon or device.” 18 U.S.C. § 2113(d). The firearms statutes, 18

U.S.C. §§ 921-930, define the term “firearm” as follows:
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The term “firearm” means (A) any weapon (including a starter gun)

which will or is designed to or may readily be converted to expel a

projectile by the action of an explosive; (B) the frame or receiver of any

such weapon; (C) any firearm muffler or firearm silencer; or (D) any

destructive device. Such term does not include an antique firearm.

18 U.S.C. § 921(3). The term “antique firearm” is defined as follows:

The term “antique firearm” means--

(A) any firearm (including any firearm with a matchlock,

flintlock, percussion cap, or similar type of ignition system) manufactured

in or before 1898; and

(B) any replica of any firearm described in subparagraph (A)

if such replica --

(i) is not designed or redesigned for using rimfire or

conventional centerfire fixed ammunition, or

(ii) uses rimfire or conventional centerfire fixed

ammunition which is no longer manufactured in the United States and

which is not readily available in the ordinary channels of commercial trade. 

18 U.S.C. § 921(16). Both parties agree that, under section 921's definition of a

“firearm,” the weapon Mr. Villanueva carried would not be considered a firearm, because

it fits the definition of an “antique firearm” under § 921(16)(B).

The sentencing guideline applicable to robberies, USSG §2B3.1, includes among

its special offense characteristics a five-level increase in the base offense level if a

firearm is “brandished, displayed, or possessed,” and a three-level increase if a dangerous

weapon is “brandished, displayed, or possessed.” USSG §2B3.1(b)(2). The Application

Notes to that guideline specify that “firearm” and “dangerous weapon” are “defined in the

Commentary to §1B1.1 (Application Instructions).” USSG §2B3.1, comment. (n.1). The

Application Notes to USSG §1B1.1, in turn, define “firearm” as follows:
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(i) any weapon (including a starter gun) which will or is designed to or may

readily be converted to expel a projectile by the action of an explosive; (ii)

the frame or receiver of any such weapon; (iii) any firearm muffler or

silencer; or (iv) any destructive device. A weapon, commonly known as a

“BB” or pellet gun, that uses air or carbon dioxide pressure to expel a

projectile is a dangerous weapon but not a firearm. 

USSG §1B1.1, comment. (n.1(e)). There is no exception for antique firearms.

The district court, after observing that it was a “very close question,” concluded

that Mr. Villanueva’s weapon was a firearm for sentencing purposes, stating:

The term “dangerous weapon” in 18 U.S.C. 2113(d) is in my view generic. 

The term “firearm” in the guideline is specific. Whether this particular

instrument is a dangerous weapon as defined by the guideline or a firearm

as defined by the guideline, that distinction is not a predicate for the

underlying offense of bank robbery under 2113(d).

. . . .

And I conclude that Congress has delegated to the United States

Sentencing Commission authority to make the definition [of] a firearm that

it has.

R. Vol. 2, at 20-21. Thus, the district court held that the guideline definition of a firearm

was valid, notwithstanding that the firearms statute did not include an antique firearm like

Mr. Villanueva’s in its definition of a firearm.

On appeal, Mr. Villanueva appears to take a slightly different approach than he did

before the district court, where he argued that the statutory definition implicitly overruled

the sentencing guideline definition. He now argues, relying upon a Fourth Circuit case,

United States v. Mahler, 891 F.2d 75, 76-77 (4th Cir. 1989), that the gun should be

considered a dangerous weapon, not a firearm, because it was a replica. He also argues

that the replica revolver should not be considered a firearm “because of its obviously
1The court went on to analogize the replica to an unloaded gun, and held that

possession of a replica justified an upward departure “by the same amount as if the

weapon were a firearm under the definition set forth in the guidelines.” Mahler, 891 F.2d

at 77. 

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inoperable nature.” Appellant’s Br. at 10. He relies upon an Eighth Circuit case, United

States v. Luster, 896 F.2d 1122 (8th Cir. 1990), in support of this latter argument. We

reject both arguments.

The court in Mahler observed that “[a] reading of the Sentencing Guidelines

discloses no reference to a handgun replica,” Mahler, 891 F.2d at 77, and that the replica

in Mahler did not meet the guideline definition for a firearm or dangerous weapon.1

 In

this case, Bureau of Alcohol, Tobacco and Firearms Special Agent Phillip Miller testified

at Mr. Villanueva’s sentencing hearing that the weapon in question met the guideline

definition of a firearm as the “frame or receiver of” a weapon. R. Vol. 2, at 7. Thus,

Mahler provides no assistance to Mr. Villanueva, because the particular weapon Mr.

Villanueva carried does meet the guideline definition for a firearm.

Mr. Villanueva next asks us to follow the Eighth Circuit in Luster, and hold that an

“obviously inoperable” weapon such as that carried by Mr. Villanueva should be treated

as a dangerous weapon, not a firearm. The court in Luster followed United States v.

Burke, 888 F.2d 862, 869 (D.C. Cir. 1989), which held that the guideline definition of a

firearm included “inoperable as well as operable firearms.” Luster agreed with Burke

“that the inoperability of the firearm should not bar a 2D1.1(b) adjustment, provided that
2The rationale for concluding that inoperable or unloaded firearms should be

included in the guideline definition is that the mere “display of a gun instills fear in the

average citizen” and “as a consequence . . . creates an immediate danger that a violent

response will ensue.” McLaughlin v. United States, 476 U.S. 16, 17-18 (1986); see

United States v. Paulk, 917 F.2d 879, 882 (5th Cir. 1990); Burke, 888 F.2d at 869. Thus,

its impact on the victim is critical; if the victim is led to believe that the defendant carries

a weapon, but the victim does not actually see the weapon, then the defendant should not

be able to take advantage of any “obvious” inoperability of the weapon.

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the firearm at the time of the offense did not clearly appear inoperable.” Luster, 896 F.2d

at 1128-29. Thus, Luster qualified the Burke holding by stating that firearms which

“clearly appear inoperable” are not firearms under the guidelines. 

We need not decide whether we should make any exception for “clearly

inoperable” weapons, however that term might be defined. In this case, the weapon was

not actually displayed; rather, Mr. Villanueva implicitly referred to it, thereby leading his

victim, Ms. States, to believe that he carried a weapon. Even if it was “obviously

inoperable,” its operability or inoperability was not apparent to the victim of the crime.2

Furthermore, while Special Agent Miller testified that the weapon was inoperable, and the

government does not seriously dispute its inoperability, there were no findings on the

obviousness of the weapon’s inoperability. 

For the foregoing reasons, Mr. Villanueva’s sentence is AFFIRMED. The

mandate shall issue forthwith.
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ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge