F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , P laintiff-Appellee
,

v.

N E A L M A R

T I N B A I N , Defendant-Appellant. No. 17-10107

D.C. No. CR 14-1167 GMS

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na G. Murray

Snow, Chief District J u dg e, Presiding

A rg ued and Submitted November 16, 2018 San F rancisco, California

F iled J une 11, 2019

B efore: A. W allace Tashima and Milan D. Smith, J r., Circuit J u dg e s, and L awrence L

. Piersol, * District J udg e.

Opinion by

J u dg e Tashima

* T h e Ho n o rab le L aw

ren ce L

. P i erso l
, Un ited States District J u d g e f or th e District o f

So u th Dak o ta, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. B A I N 2

SUMMARY * *

Crim inal Law

The panel reversed a conviction for armed bank r obbery
, vacated a sentence, and remanded for further proceeding s.

The panel held that the d efendant’s inadvertent placement of a closed pocket knif e o n the bank counter did not constitute the “use” of a dang e rous weapon under 18 U.S.C. § 2113(d); a n d t he district c ourt therefore committed plain

error under F ed. R. Crim. P. 11(b)(3) by accepting
, without a sufficient factual basis, the defendant’s g uilty plea to armed bank robbery

. The panel held that the plain error affected the defendant’s substantial rig hts bec a u s e it is reasonably probable that the defendant would not have pleaded g uilty to that count, but for the Rule 11 error.

COUNSEL

Tony a J ill Peterso n (arg ued), L aw Office of Tony a J

. Peterson, Phoenix , Ariz ona, for Defendant-Appellant.

Andrew C. Stone (arg

ued), Assistant United States Attorney ; Krissa M. L a n ham, D eputy Appellate Chief; Eliz abeth A

. Strang e, F irst Assistant United States Attorney ; United States Attorney ’s O f

fice, Phoenix
, Ariz ona; for Plaintiff-Appellee.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. B A I N 3

OP INION

TASHI MA, Circuit J udg e:

Defendant Neal B ain pleaded g uilty to committing armed bank robbery

. On a

ppeal, B ain contends that the district court violated F ederal Rule of Criminal Pro c e d u re 11(b)(3) b y entering judg ment on B ain’s g uilty plea wi t h o u t a sufficient factual b asis for the plea. During the robbery
, which B ain admitted com m i t t i ng , B ain inadvertently placed a closed pocket knife on the bank’s counter while pulling a plastic bag
out of his pocket. W e hold that this action did not “ put[ ] in jeopardy the life o f any p e r son b y the use of a dang erous weapon,” whi c h i s a r equirement for armed bank robbery under 18 U.S.C. § 2 1 1 3 ( d )

. B ecause the district court committed p lain error in accepting B ain’s g uilty plea without

a sufficient factual basis, and the e rr or affected B ain’s substantial rig hts, we reverse B ain’s co n v i ction for armed bank robbery
, vacate h is sentence, and remand for f urther proceeding s.

BACK G ROUND

I n 2014, B ain committed a series o f bank robbe r i e s i n order to support his heroin addiction. W ithout the b enefit o f

a plea ag r eement, he pleaded g uilty to two co unts o f bank robbery in violation of 1 8 U.S.C. § 2113(a) ( Counts 1 and 3), and one count of a

r med bank robbery in violation o f 18 U.S.C. § 2113(a) and (d) (Count 2).

At issue in this appeal is t h e s u ff iciency of the evidence for his g u ilty

plea as to Count 2

. B ain admits to committing the robbery
, but h e disputes that it was an armed r obbery

. On J uly 2, 2014, B ain entered the T empe MidF irst B ank, walkedU N I T E D S T A T E S V

. B A I N 4

up to a teller, dema nded all of the money from the b ottom drawer, and k ept demanding $100 b ills. He then pulled a closed f o lding knife and a plastic bag out of his pocket a nd placed the knife o n the c o unter. B ain never opened the knife, i.e. , ex posed the blade, or threatened to use it. B ain then put the money in the plastic bag and left the bank with $11,115. B ain claims that he pulled out h is pocket knife inadvertently while retrieving the plastic bag from the same poc k et

. He claims that h e had n o intention o f causing fear or intimidating the teller with the knife, and that the k nife “wasn’t there for commission of the robbery .”

At the first chang e of plea hearing on J une 21, 2016, B ain pleaded g uilty to Counts 1 and 3, but the hearing stalled when
t h e discussion turned to Count 2

. A fter some discussi o n o f the elements of armed bank robbery and the factual basis for B ain’s g u ilty plea to this count, the mag istrate judg e sa i d : “I ’m not sure that there is a suffici e n t factual basis to recommend the g uilty plea to Count 2 b e a ccepted, because according to the parties’ ag reement, the proof would have to be that he assaulted and put in jeopardy the life of [ the teller] by the use of a dang e rous w eapon o r d e vice, that is, a knife. I ’m not sure placing a closed knife on the counter is an assault or would constitute putting in jeopardy the life of [ the teller] .” Ultima t e l y , the mag istrate judg e did not accept a g uilty plea to Count 2 at this hearing

.

At the second chang e of plea hearing on Aug ust 4, 2016, the hearing ag ain stalled on the to p i c of the required f actual basis for a g uilty plea to a rmed b ank robbery

. After reviewing the factual bases proposed by Ba in and the go v ernment, the mag istrate judg e said that the p ropo s e d factual basis did n ot “me e t the elements required by the
statute or the jury instruction. So I ’m not sure why we ’reU N I T E D S T A T E S V

. B A I N 5

here.” B ain’s counsel later asked, “ so are y ou say ing that the defendant’s p roposed factual basis in this request f or chang e of plea hearing on Count 2 is not sufficient? ” and the mag istrate judg e replied, “I d on’t think so.” However, a fter re-reading the Ninth Circuit model jury instruction for armed bank robbery
, the mag istrate judg e a ccepted the proposed factual basis, a

nd both th e g overnment and B ain’s counsel ag reed that there was “enoug h ” in the factual basis. 1 The mag istrate judg e then turned to B a in, and B ain ex pressed confusion about what had just occurred in the proceeding s:

“TH E COURT: So Mr. B ain, now to y ou. All this lawy e r talk.

THE DEF ENDANT: B oy

. I t’s perplex ing .”

The court read the proposed factual basis to B ain, and he ag reed to it:

“ THE COURT: [ The factual basis say s] y o u then stated y ou wanted all of the hun d reds from the bottom d

ra w e r and placed a plastic shopping bag and a closed pocket knife on the counter. I s this true?

THE DEF ENDANT: Yes, Your Honor.”

1 T h e Nin t h Circu it m o d el j u ry in stru ctio n states, in relev an t p art:

“ [th e d ef en d an t in ten tio n ally [[stru ck o r w o u n d ed [ n a me of victim ]] [m ad e

a d i sp lay of f

o rce th at reaso n ab l y cau sed [ na me o f victim ] to f

ear b o d ily h arm ] by u sin g a [ sp ecify d a n g ero u s wea

p on o r d evice ].” 9 t

h Cir. Crim

. J u ry In str. 8 .1 6 2 : B an k

Ro b b ery

.U N I T E D S T A T E S V

. B A I N 6

The mag istrate judg e asked B ain no other questions about the knife and ma de no additional finding s reg arding whether B ain put the bank teller’s life in jeopardy by the use of a dang erous weapon. Concluding the h ear i ng , the mag istrate judg e said,

“ i t certainly seems to meet the – facts seem to meet t h e elements o f t h e N inth Circuit jury instruction on this

o f fense.” The mag istrate judg e then recommended tha t B ain’s g uilty plea to Count 2 be a ccepted by the district court, which the district court did.

W h en B ain was g iv e n a n o pportunity to speak at his
sentenc i n g h e aring in front of the district judg e, B ain immediately addressed the issue of the knife o n the bank
counter. B ain e x plained h ow he believed he needed the knife for self-protection b e c a u s e he was living on the streets, a nd said, “thank God I never had t o use a weapon ag ainst any body

. ” He then discussed the b a n k robbery itself a nd insisted t hat h e never brandished the knife or tried to u se it during the robbery :

W h en I took the bag out – normally
, I would put the money

down my shirt. L ike in the W as h i ng ton F e d eral robbery I put the money down my shirt. I n this p articular b a nk I had a b a g an d it was in my pocket. I took the bag out. The k

nife w a s in the same pocket. I put it d own because my adrenaline

– ‘ c a u s e what I ’m doing is I ’ m n ot – I ’m not concentrating

on doing it.

The e m ploy ees in the bank, one of the tellers wasn’t even aw a r e of the knife. The

one teller said I put i t on there b ut made no display with it. And I tell y ou t o d ay , YourU N I T E D S T A T E S V

. B A I N 7

H o nor, that that w eapon wasn’t there f o r commission of the robbery

.

I f y ou’ll r emember, my last bank r obbery [ in 1996] was with a pellet g un. And if that

– t hat’s an intimidating factor, I imag ine, br a n d i s hing a p ellet g un, because it c ould be

c o n sidered a real w eapon. I didn’t brandish
t h e knife. I simply took it out to obtain th e bag

. I t was rig h t in the same spot at the same time. I t was – it was – I didn’t u n fo l d i t, it

was still folded, and that’s the trut h o f the matter, Your Honor.

The district court the n sentenced B ain to 137 months o f imprisonment for Counts 1 and 3, and 1 97 m o n t h s o f imprisonment for Count 2, with al l counts to run concurrently

.

JURISDICTION AND STANDARD OF REVIEW

W e h ave jurisdiction under 28 U.S.C. § 1291. W h en a defendant r aises an issue on a ppeal that was not raised before the district c ourt, such as the lack of a factual basis for a g uilty plea u nder Rule 11, our review is limited to plain

error. 2 S ee F ed. R

. Crim. P. 52(a)–(b); U nited States v

. Monzon
, 429 F .3d 1 268, 1271 (9t h C ir. 2005). I n assessing the effect of a Rule 11 error, we must look to the entire record and not to the plea proceeding s alone. Id. The error requires reversal only if it affected the defendant’s substantial rig hts.

2 “ Plain erro r is ‘ (1 ) erro r, (2 ) th at i s p lain
, an d (3 ) af f ects su b stan tial rig h ts.’ ” Un ited

S ta tes v. Amelin e , 4 0 9 F.3 d 1 07 3
, 1 0 78 (9 th C ir. 20 0 5) (citatio n o m itted ).U N I T E D S T A T E S V

. B A I N 8

Id

. W e ex ercise our discretion to correct the e rror only if it “seriously affects the fairness, integ rity or public reputation of judicial proceeding s.” Unit e d S tates v. Olano
, 5 07 U.S. 725, 732 (1993).

D ISCUSSION

I. The f actual basis requirem ent of Rule 11

B e fore accepting and entering judg ment on a g uilty plea, the district c ourt must d etermine that there is a factual basis for the plea. F ed. R. Crim. P. 11(b)(3). B ain challeng es only the factual basis f

or his plea to the “armed” element o f Count 2

. 18 U .S.C. § 2113(d) reads: “W hoever, in committing
, or in attempting to commit, any offense defined in subsections (a) and (b) o f this section, assaults any person,

or puts in jeopardy the life of a ny perso n by the use of a dang erous weapon or device, shall be

. . . imprisoned not

m o re than twenty -five y ears.” (emphasis added). The g overnment concedes, as stated in its Appe l lee’s B rief, that “The parties all ag

reed at the chang e of the plea hearing that the ‘ assault’ portion of the statute d i d n ot apply in this matter.” Therefore, the only issue before this Court is

w h e t h er there was a sufficient factual basis to meet t h e statutory requirement of “puts in j e o pardy the life of any person by the use of a dang erous weapon or device.” More specifically
, we focus on what constitutes the “ u s e ” of a dang erous weapon during a bank robbery

.

II. The district court com m itted plain error

.
Under our precedent, B ain d id not use a dang erous weapon d uring the bank ro b b e r y

. I n an early case, we h eld that for ag g r avated robbery
, the weapon must be used suchU N I T E D S T A T E S V

. B A I N 9

that “the life of th e p e r s o n being robbed is placed in an objective st a[ t] e of dang er.” W agner v. United States
, 264 F

. 2d 524, 5 30 (9th Cir. 1959). There, we found sufficient

use of a weapon where t h e r o bber pressed the g un to the vic t i m ’ s side “with such f o rce that it ripped h is shirt.” Id.
at 531. L ater, in U

ni t e d States v. Coulter
, 474 F .2d 1004, 1005 (9th Cir. 1973), we imputed W agner ’s “objective state of dang er” standard to § 2113(d)’s “ put[ ting ] in jeopardy the life of any person” element, which is at issue here.

I n United States v. Odom
, we held that “a bank robber with a concealed g un who never mentions or i n s i nuates having one, but who display s it i n a d v e rtently [ c annot] be convicted of armed bank robbery .” 329 F .3d 1032, 1033 (9th Cir. 2003). W e f

urther held that the “use” of a weapon under § 2113(d) requires some ty pe of “active employ

ment” of the

w eapon. Id. ( citing Bailey v. United S tates , 516 U.S. 1 3 7
, 148 (1995), superseded b y statute on other gr o u n d s as explained in W

elch v. United States
, 13 6 S

. Ct. 1257, 1267 (2016)). I n that case, Odom robbed a b a n k w h i le he h ad a g un tucked in his waistband. H e use d a pillowcase to carry out the stolen money and when he put the pillowcase back in his jacket he inadvertently display ed his g un to the bank’s branch manag er. I

d. at 1036. The t e stimony of the b ranch manag er did not indicate that Odom meant to display the g un to h er o r that Odom was e v en aware that he had display ed it. Id. And we noted, “ it seems unlikely that if h e m eant to actively employ the g un during the robbery
, h e w o u ld have waited u ntil t h e e n d
, after he h ad been g iven the money a nd

was about to depart, before doing so.” I d

. Therefore, we h eld that Odom did not a c t ively employ a weapon in accordance with the “ use” requirement of § 2113(d), and revers e d his conviction. I n a review of decisions affirming convictions under § 2113(d )
, t h e Odom court found the “commonU N I T E D S T A T E S V

. B A I N 10

denominator” to be “ t hat the robber knowing ly made one o r

more victims at the scene of the robbery aware that he had a g un, real or not.” I

d . at 1035.

Here, B ain’s inadvertent pl a c e m ent of the closed pocket knife on the counter simi l arly did n ot constitute “active employ ment” of the knife. See id. at 1 0 3 3

. During the robbery
, B a in removed from his pocket a pl a s tic bag for

c arry ing the money

. As he removed the bag
, he al s o p u l l e d
out a closed pocket knife f ro m the same pocket and placed the closed knif

e o n the counter. H e n ever brandished o r mentioned the ex istence of the knife to the teller. L ike in Odom
, B ain inadverten t ly showed h is weapon to the teller when his attention was f

ocused elsewhere. Moreover, in both

cases the defendant never mentioned that he had a weapon o r referred to it in the course of the robbery

. Id

. at 1036. B ain also did not appear to realiz e that he was showing the weapon to the teller as he removed it from his pocket. Therefore, a s in Odom
, we conclude that B ain did not “knowing ly ma[ k] e

one or more victims at the scene of the robbery aware that he had a [ weapon] , real or not.” Id

. at 1035.

The g overnment cites Bailey to arg ue that placing a knife

on a c ounter constitutes a “use” of a weapon under § 2113(d). I n B ailey
, the Supreme Court held that “[ t] he a ctiveemploy ment understanding of ‘use’ ce r tainly includes brandishing
, display ing
, bartering
, striking with, and, most obviously
, firing or attempting to fire a firearm.” 516 U .S. at 148. F u rthermore, “[ a] r eference to a firearm calculated to bring about a chang e in the c ircumstances of the predicate offen s e is a ‘ u se,’ just as the silent but obvious and forceful
presence of a g un on a table can be a ‘use

. ’ ” I d. B ut the words “obvious and fo rceful” and “ c an” are key to the Supreme Court’s hy

pothet i c al. These words illustrate thatU N I T E D S T A T E S V

. B A I N 11

contex t is critical in determining whether the silent presence of a w eapon constitutes active employ ment. I t is not merely the presence o f the g un but r ather the “obvious and f orceful”
presence of the g un th a t c a n (but does not necessarily ) support a finding that a g u n was used. Therefore, whether the silent presence of a weapon constitutes a “ u s e ” under § 2113(d) needs to be decided o n a case-by -case basis. Here, B ain’s p ocket knife on the bank c ounter does not carry the

same “ obvious and forceful” weig ht as the g un in the Supreme Cour t’s hy

p othetical. The pocket knife remained closed and B a in did n othing to call attention to its presence; there is no evidence t h a t t h e second teller at the bank even realiz e d at the time of the robbery t h a t t h e r e was a knife on the counter. 3 Thus, the silent presence of t h e k n ife on the bank counter was not “obvious and forceful,” and Bailey does
not compel a finding that B ain’s knife was “used” in the bank robbery . 516 U.S. at 148.

W e therefore hold that B ain’s inadvertent placement of a closed pocket knife o n the bank counter d i d not “put[ ] in jeopardy the life o f any p e r son by the u s e of a dang erous weapon or device.” See 1 8 U.S.C. § 2113(d). B ecause there

was not a sufficient f

actual basis to establish that B ain committed armed bank r obbery
, it was plain error to enter judg ment on this g uilty

plea. S ee F ed. R. Crim. P. 11(b)(3); United States v. Bingham
, 497 F .3d 665, 669 (9th Cir. 2 006) (“F or error to qua l i fy as ‘plain,’ it must b e clear-cut, so obvious, a competent district judg e should be able to avoid it without benefit of objection.”).

3 T h e reco rd d o es n o t d isclo se th e len g th o f th e k n if e o r its b lad e.U N I T E D S T A T E S V

. B A I N 12

III. The error af

f ected Bain’s substantial rights.

I n order to show t h a t a plain e rror affects substantial rig hts, the defendant “m u s t show a reasonable probability that, but for the error, he wo uld not have entered the plea,” which would be “sufficien t to undermine confidence in the
outcome of the pr o c e ed ing .” Monzon
, 429 F .3d at 1272. “The r easonable-probability standard is not the same as, a nd should not b e confused with, a requirement that a defendant
prove b y a preponderance of the e vidence that but for error thing s would have been different.” Id

. I n Monzon
, the d e f e n dant pleaded g uilty to possession of a firearm i n f u r t h e r a n c e of a drug trafficking crime. Id. at 1269. B ut there wa s an absence of evidence showing that Monz on intended to possess his g un “i n furtherance” of his d rug trafficking crime, and Monz on “ spec i f ically objected when the district c ourt asked him if he in fact possessed the g un in part to protect the drug s.” Id at 1273. T he record also appeared to show that Monz on was unaware that the amended
statement of facts he a g reed to was insufficient to support the “in furtherance” element of the crime. Id

. Therefore, it was

re a s onably probable that Monz on would have proceeded to trial on the g un-related charg e absent the Rule 11 error. Id

.

B a in’s case is very similar t o M onzon because B ain appeared to be unaware t hat the f a c ts he ag reed to were insufficient to establish a req u i r e d element of § 2113(d). Throug hout this c a se, including at sentencing and in the Presentence I nvestig ation Report, B ain has consistently a nd adamantly claime d t h a t the knife was not meant for the robbery and that he did not intend to take the knife out o f his pocket. B ain also has confirmed that h e did not brandish the k n i fe or even mention its presence to the teller. At h is ple a hearing
, B ain stated o n the record that he found theU N I T E D S T A T E S V

. B A I N 13

discussion over the proper factual basis to be “ perplex ing ,” so he was likely u naware that there was a n absence of evidence
to support a convictio n u n der § 2113(d). Taken tog ether, these circumstances sh o w that the Rule 11 error “likely affected [ B ain’s] assessment o f his strateg ic position.” See Monzon
, 4 29 F .3d at 1272

. I t also shows that it was reasonably p robable that B a in would have g one to trial on the § 2113(d) charg e a b s e n t the Rule 11 e r ror. T hus, the plain

er r o r affected B ain’s substantial rig hts and the fairness a nd integ rity of the judicial proceeding s. 4

CONCLUSION

W e h old that the district court committed plain error in accepti n g B ain’s g uilty p lea to Count 2. B ain’s inadvertent placement of a closed pocket knife on the bank’s counter did
not constitute the “use” of a d a n g e r ous weapon. W e also hold that the plain error a f

fected B ain’s substantial rig hts because it is reasonably probable that B ain wou l d n o t have pleaded g uilty to Count 2
, but for the Rule 11 err o r

. W e therefore,

reverse B ain’s conviction for armed bank robbery (Count 2),
vacate his e ntire sentence, and remand f or further proceeding s consistent with this opini o n

. 5 S ee United States v. Davis
, 854 F .3d 601
, 6 0 6 ( 9th Cir. 2017) (“W hen a defendant is sentenced on multiple c ounts a nd one of them is later vacated

on appeal, the sentencing packag e comes unbundled. Under

4 A d d itio n ally
, w e n o te th at B ain w as sen t e n c e d to a 6 0

- m o n th s g reater sen ten ce on th e arm ed co u n t, th an o n th e u n arm ed co u n t s

– 1 9 7

m o n th s’ im

p riso n m en t, rath er th an

1 3 7 m o n th s’ im

p riso n m en t.

5 B ecau s e w e v acate B ain ’ s s en ten ce o n th e ab o v e g ro u n d
, w e d o n o t reach h is rem ain in g co n ten tio n s th at h is sen ten ce w as b o t h su b stan tiv ely

an d p ro ced u rally

u n reaso n ab le.U N I T E D S T A T E S V

. B A I N 14

these c ircumstances, v acating the sentence is required in order to a llow the district court to put tog ether a new packag e reflecting its considered judg m e n t as to the punishment the defendant deserves f

or th e c r i m es of which he remains convicted.” (citations, internal quotation marks, a nd alterations omitted)). 6

REVERSED in part, sentence VACATE D , a nd REMANDED.

6 B ecau s e, p resu

m ab ly
, j eo p ard y h as n o t attach ed
, t h e g o v ern m en t

m ay elect to tak e Co u n t 2 to trial, red u ce th e Co u n t 2 ch arg e to u n arm ed b an k ro b b ery , o r sim

p ly d ism iss Co u

n t 2

. Un d er an y o f th ese scen ario s, B ain w ill h av e to b e resen ten ced

.