1

The Honorable Richard E. Dorr, United States District Judge for the Western

District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1341

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States 

v. * District Court for the Western 

* District of Missouri.

Richard Lee Paine, Sr., *

*

Defendant - Appellant. *

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Submitted: October 29, 2004

Filed: May 18, 2005 

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Before BYE, BEAM, and GRUENDER, Circuit Judges.

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BYE, Circuit Judge.

In this direct criminal appeal, Richard Lee Paine, Sr., appeals the district

court's1

 finding he "otherwise used" rather than "brandished" a firearm within the

meaning of United States Sentencing Guidelines § 2B3.1(b)(2)(B) during a June 15,

2002, bank robbery. He also appeals the district court's finding he "used or attempted

to use" his sixteen-year-old son within the meaning of U.S.S.G. § 3B1.4 during the

commission of the robbery. We affirm. 
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I

On June 15, 2002, the O'Bannon Bank in Dallas County, Missouri, was robbed

by two males wearing baseball caps and sunglasses. The FBI arrested Paine and

charged him with robbery by force, violence and intimidation, and with committing

the robbery by assaulting and putting in jeopardy the life of a bank employee by use

of a handgun, in violation of 18 U.S.C. § 2113(a) and (d). On October 14, 2003, he

pleaded guilty pursuant to a written plea agreement. On February 3, 2004, a

sentencing hearing was held wherein he was sentenced to 70 months imprisonment.

As part of the plea agreement, the parties stipulated to the following facts. 

Around 11:00 a.m. on Saturday, June 15, 2002, Defendant

and his son (who at the time was sixteen years old) entered

the O'Bannon Bank, Gem Center Branch, Old Highway 65

South, Dallas County, Missouri wearing caps and

sunglasses. The Gem Center Branch is located near Fair

Grove, Missouri. Defendant and his son approached a

teller, and Defendant pulled a handgun from his waistband

and pointed the handgun at the teller. Defendant said

words to the effect "This is a stick up. Hand me your large

bills." After a short pause, Defendant said words to the

effect "I mean it. This is a stick up. Give me your large

bills." A short time later, Defendant asked the teller if she

had hit any alarms. The teller removed currency from her

teller drawer and placed the currency on the teller counter.

Defendant took the currency and placed the currency in a

plastic bag. Defendant and his son then left the bank with

the currency. Defendant took $3,300 in the robbery.

Defendant and his son were photographed by the bank's

surveillance cameras.

At the time of the robbery, O'Bannon Bank's deposits were

insured by the Federal Deposit Insurance Corporation.
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On Monday, September 15, 2003, Defendant, after being

advised of his Miranda rights, stated in writing he and his

son "entered the O'bannon [sic] Bank in Fair grove [sic]

Mo., and I robbed the bank for $3,200. I used an unloaded

Colt 45 pistol . . . . it [sic] was all my idea and not my sons

[sic] idea, he had no idea that I was going to rob this bank

. . . ." Defendant also identified himself in surveillance

photographs of the robbery.

Defendant agrees these facts are true except that Defendant

states he did not remove and point the handgun at the teller

until the teller paused after Defendant first stated "This is

a stick up. Hand me your large bills."

At sentencing, the following testimony was received,

THE COURT: What are the facts of the – I think I read in

the presentence investigation report that maybe Mr. Paine

had said that he didn't point it at the teller till she didn't

respond to his first command or something and then

pointed it?

MS. LEONARD: Yes, Your Honor, if you – actually, in

the plea agreement there's a stipulation to the facts in

Paragraph 2 and it's – it was his recollection that he did not

remove and point the handgun at the teller until she paused

after he first said, "This is a stick-up. Hand me your large

bills."

Her recollection, I believe, was that he pulled the handgun

from his waistband and pointed the handgun at her and said

words to the effect, "This is a stick-up," and then when she

didn't believe him, said, "I mean it. This is a stick-up." So

those are the facts that were stipulated to in the plea

agreement.
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THE COURT: But the defendant is agreeing that after she

didn't respond at first, he then removed, I guess from his,

what, waist –

DEFENDANT PAINE: Yes.

THE COURT: – I'm not sure of the picture, but – and

pointed the handgun at the teller with further direction. Is

that what I'm reading here in the set of facts?

MS. LEONARD: Yes. His recollection was he pulled it

out after she did not believe him that it was a stick-up, yes.

Additionally, the government offered into evidence four photographs taken by

surveillance cameras showing Paine and his son during the robbery. The photographs

show Paine and his son standing at the teller window wearing baseball caps and

sunglasses. The photographs show him holding the gun and pointing it at the teller

with his finger on the trigger. Finally, they show he and his son standing only a few

feet from the teller - across the teller window - during the course of the robbery.

Paine stipulated the photographs were taken during the course of the robbery and he

identified himself in the photographs.

 

Paine admitted his actions amounted to brandishing a firearm (a five-level

enhancement) but argued the evidence was insufficient to prove he otherwise used

the weapon (a six-level enhancement) during the robbery. Based on the evidence, the

district court concluded, 

THE COURT: Well, I admit, the cases probably leave us

with not a lot of guidance there, but based on what I

understand the facts to be, in looking at these pictures, it's

clearly shown, Mr. Paine, with your hand on the gun and

looks like finger on the trigger. And if it was pulled out

and pointed at the teller after she didn't respond the first

time, that seems like it's a pretty fair inference that that was
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meant to convey a threat if something didn't – if she didn't

respond in the way you wanted to.

So I find it's otherwise used. I find it's something more

than just showing that you happened to have a gun in your

pocket or in your belt when you pulled it out and pointed

it to [sic] her to get her to give you the money.

Next, Paine argued his offense level should not be enhanced an additional two

levels because the evidence was insufficient to show he "used or attempted to use his

[sixteen-year-old son] to commit the offense or assist in avoiding detection of, or

apprehension for, the offense." To rebut his arguments, the government focused on

the photographs, and offered this additional stipulation,

THE COURT: All right. What's the government say?

MR. BUNCH: Your Honor, by way of evidence, one other

fact that I believe the parties are prepared to stipulate to is

that Mr. Paine informed FBI special agent David Burlew at

the time he was arrested that the reason he had asked his

son to go with him is although his son did not know,

according to Mr. Paine, that he was going to rob the bank,

that he wasn't brave enough to commit the robbery by

himself and so he wanted his son to go in order to give him

the courage to commit the robbery.

Is that something that Mr. Paine can stipulate to or would

you like for me to call Agent Burlew?

MS. LEONARD: I think that that's in the reports, that you

told the FBI that in the initial interview?

DEFENDANT PAINE: Yeah.

Based on this evidence, the district court concluded,
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THE COURT: Well, again, I've got these four pictures

here, and it – I have to do my own evaluation of it. When

I look at these pictures, the son does not look to me like

he's surprised that his dad is standing there with a gun. In

fact, he looks very calm standing at the teller window as if

he's a participant in this robbery. It's clear that the father

got his son there by directing him, encouraging him,

recruiting, soliciting, however you want to label it. The

son didn't just happen to show up there as a coincidence.

And it appears clear to me that the defendant did use his

son. And whether or not that was to commit the offense or

to avoid apprehension because of numbers, all I can say is

that judging the pictures and the statement that was made,

I find that it's proper to enhance by the two levels for using

a minor to commit the crime.

On appeal, Paine argues there were insufficient facts to support the district

court's application of the six-level enhancement for "otherwise using" a firearm

instead of a five-level enhancement for "brandishing" a firearm. He also argues there

were insufficient facts for the district court to apply a two-level enhancement for

using his son in connection with the robbery. Finally, for the first time on appeal

Paine argues his Sixth Amendment rights were violated because the factual bases for

the enhancements were not submitted to a jury. 

II 

We review the district court's application of the Sentencing Guidelines de

novo, United States v. Smotherman, 285 F.3d 1115, 1116 (8th Cir. 2002), and its

findings of fact for clear error, United States v. Hart, 324 F.3d 575, 579 (8th Cir.

2003) (citation omitted). We need not, however, review the district court's

independent findings of fact if the factual predicate necessary to justify a sentencing

enhancement is derived from a defendant's factual admissions. In other words, if the

facts admitted by Paine are sufficient to support the enhancement, any additional fact
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findings by the district court are superfluous. United States v. Gomez, 271 F.3d 779,

781 (8th Cir. 2001). Similarly, his Sixth Amendment claim fails if he admitted the

facts necessary to support the sentence imposed. United States v. Booker, 543 U.S.

— , 125 S.Ct. 738, 756 (2005) ("Any fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted by the defendant or

proved to a jury beyond a reasonable doubt.") (emphasis supplied). Thus, we must

determine whether his admissions provide an adequate factual basis to support the

enhancements and to overcome his Sixth Amendment claim. 

A. U.S.S.G. § 2B3.1(b)(2)(B) - "Otherwise Used" or "Brandished"

Section 2B3.1(b)(2) of the United States Sentencing Guidelines provides,

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

a firearm was otherwise used, increase by 6 levels; (C) if a

firearm was brandished or possessed, increase by 5 levels;

(D) if a dangerous weapon was otherwise used, increase by

4 levels; (E) if a dangerous weapon was brandished or

possessed, increase by 3 levels; or (F) if a threat of death

was made, increase by 2 levels.

Application Note 1 to § 2B3.1 states "otherwise used" and "brandished" are

defined in the Commentary to U.S.S.G. § 1B1.1. Application Note 1 to § 1B1.1

provides,

(C) "Brandished" with reference to a dangerous weapon

(including a firearm) means that all or 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, regardless of whether the weapon

was directly visible to that person. Accordingly, although
2

Prior to November 1, 2000, Application Note 1(c) to § 1B1.1 stated

"'[b]randished' with reference to a dangerous weapon (including a firearm) means that

the weapon was pointed or waved about, or displayed in a threatening manner."

(emphasis supplied).

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the dangerous weapon does not have to be directly visible,

the weapon must be present.2

(I) "Otherwise used" with reference to a dangerous weapon

(including a firearm) means that the conduct did not

amount to the discharge of a firearm but was more than

brandishing, displaying, or possessing a firearm or other

dangerous weapon.

In United States v. Hoelzer, 183 F.3d 880, 883 (8th Cir. 1999), this court

upheld an "otherwise used" enhancement where the defendant used a gun to strike the

victim in the head. In United States v. Elkins, 16 F.3d 952, 953-54 (8th Cir. 1994),

we upheld an "otherwise used" enhancement where the defendant held a knife against

the throat of a victim. We have not, however, had an opportunity to apply

§ 2B3.1(b)(2) in a factual scenario similar to this case since the November 1, 2000,

amendment to Application Note 1(c) to § 1B1.1.

Other circuits, however, have directly faced this issue. In United States v.

Cover, 199 F.3d 1270, 1278-79 (11th Cir. 2000), the court stated "[w]e agree with

this definition and, like the majority of courts that have considered the question, find

that the use of a firearm to make an explicit or implicit threat against a specific person

constitutes 'otherwise use' of the firearm." Similarly, in United States v. Orr, 312

F.3d 141, 144-45 (3d Cir. 2002), the court addressed the difference between

"brandishing" and "otherwise using" and concluded "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." In United States v. Warren, 279 F.3d 561, 563 (7th
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Cir. 2002), the court indicated "[w]e have affirmed 'otherwise used' adjustments when

pointing a weapon at a specific victim created a personalized threat of harm." See

also United States v. LaFortune, 192 F.3d 157, 161 (1st Cir. 1999) ("[I]t was the

specific rather than the general pointing of the gun that elevated its use from mere

'brandishment' to 'otherwise used'"); United States v. Gilkey, 118 F.3d 702, 706 (10th

Cir. 1997) (emphasizing the specific over the general threats to the victim); United

States v. De La Rosa, 911 F.2d 985, 993 (5th Cir. 1990) (brandishing plus specific

threats constitute otherwise using a weapon).

Notwithstanding these cases, Paine asks us to adopt the position advocated by

the Second Circuit in United States v. Matthews, 20 F.3d 538, 554 (2d Cir. 1994),

where the court held brandishing and pointing firearms at a victim while uttering

explicit threats did not trigger the "otherwise used" enhancement. In light of the

November 1, 2000, amendment to the application note, we conclude the precedential

value of United States v. Matthews is greatly diminished. It is apparent the

amendment was intended to include at least some instances involving pointing a

weapon within the definition of "otherwise used." 

Here, Paine was standing only two or three feet from the teller when he drew

the weapon and pointed it directly at her. Paine admits he drew the weapon because

the teller did not immediately respond when he told her: "This is a stick up. Hand me

your large bills." After drawing the weapon, Paine, with his finger on the trigger of

the gun, emphasized the threat saying: "I mean it." In doing so, he did more than

display the gun. He employed the gun to convey a threat directed at this specific

teller which was intended to intimidate her into complying with his demands. 

We conclude Paine's admissions satisfy the factual predicate necessary to

establish the gun was "otherwise used" in committing the robbery. 
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B. U.S.S.G. § 3B1.4 - Paine's Use of His Son

Section 3B1.4 states: "If the defendant used or attempted to use a person less

than eighteen years of age to commit the offense or assist in avoiding detection of, or

apprehension for, the offense, increase by 2 levels." Application Note 1 states: "'Used

or attempted to use' includes directing, commanding, encouraging, intimidating,

counseling, training, procuring, recruiting, or soliciting." § 3B1.4, cmt. n.1.

Both Application Note 1 and cases applying § 3B1.4 make clear the "used or

attempted to use" language requires the defendant to affirmatively involve or

incorporate a minor into the commission of the offense. "Pursuant to the sentencing

guidelines, the two-level § 3B1.4 increase is only applicable if a defendant directs,

trains, or in some way affirmatively engages the minor participant in the crime of

conviction." United States v. Suitor, 253 F.3d 1206, 1210 (10th Cir. 2001); United

States v. Jimenez, 300 F.2d 1166, 1169 (9th Cir. 2002) ("The evidence must show

that 'the defendant acted affirmatively to involve the minor' in the crime") (quoting

United States v. Parker, 241 F.3d 1114, 1120 (8th Cir. 2001)); United States v.

Castro-Hernandez, 258 F.3d 1057, 1060 (9th Cir. 2001) ("It is sufficient that the

defendant took affirmative steps to involve the minor in a manner that furthered or

was intended to further the commission of the offense."); United States v. Rivera, 248

F.3d 677, 682 (7th Cir. 2001) (same); United States v. Butler, 207 F.3d 839, 847 (6th

Cir. 2000) (same).

Under § 3B1.4, "used or attempted to use" does not, however, require active

involvement on behalf of the minor. Castro-Hernandez, 258 F.3d at 1060 (citing

United States v. Warner, 204 F.3d 799, 801 n.2 (8th Cir. 2000) ("We agree that a

minor's own participation in a federal crime is not a prerequisite to the application of

§ 3B1.4.")); see also Warner, 204 F.3d at 801 n.2 (finding no plain error in district

court's application of § 3B1.4 where defendant "acted irresponsibly in bringing his

young child on this nefarious junket. His offer to leave her in what might well have
3

Both Paine and his son donned baseball caps and sunglasses before entering

the bank in an apparent attempt to conceal their identities. The photographs show

Paine's son standing next to him as the pair huddled in front of the teller window.

They also show Paine's son was in a position to see his father draw the weapon and

hear him threaten the teller. Thus, we find Paine's claim his son was unaware of the

robbery plan dubious. Nevertheless, we need not rely on any such inferences, no

matter how reasonable, to conclude the district court's application of the sentencing

enhancement was justified. 

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been a dangerous situation to facilitate his criminal activity warrants a sentence

enhancement.").

Here, Paine admitted he asked his son to accompany him on the robbery to

provide moral support. He stated without his son present he would not have been

able to follow through with his plan. Paine, however, contends the enhancement was

unjustified because his son had nothing to do with nor did he know about the

robbery.3

As noted above, Paine's son's knowledge of the robbery plan and his

participation in the plan are not germane to our inquiry. "[T]he relevant inquiry is

whether [Paine] took affirmative acts to involve [his son] in the commission of the

offense. Rivera, 248 F.3d at 682 (citation omitted). It is, therefore, enough he

admitted to asking his son to accompany him on the robbery because he would not

otherwise have had the courage to commit the crime. In concluding the facts

admitted by him are sufficient to support the district court's application of § 3B1.4,

we are mindful "[t]he unambiguous legislative design of section 3B1.4 is to protect

minors as a class from being 'solicited, procured, recruited, counseled, encouraged,

trained, directed, commanded, intimidated, or otherwise used' to commit crime."

United States v. McClain, 252 F.3d 1279, 1286 (11th Cir. 2001) (citing Violent Crime

Control and Law Enforcement Act of 1994 § 140008(a); § 3B1.4, cmt. n.1 (2000)).

As in Warner, we are convinced, by Paine's own admissions, his irresponsible act of
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involving his son in a potentially life-threatening crime warrants this sentencing

enhancement. 204 F.3d at 801. 

Finally, we consider whether Paine's sentence, imposed under a mandatory

sentencing scheme, is erroneous. See United States v. Pirani, No. 03-2871, slip op.

at 6 (8th Cir. April 29, 2005) (en banc) (citing United States v. Antonakopoulos, 399

F.3d 68, 76 (1st Cir. 2005) ("The argument that a Booker error occurred is preserved

if the defendant below argued Apprendi or Blakely error or that the Guidelines were

unconstitutional.")). Here, Paine first raised Blakely in proceedings before this court.

Thus, we review his sentence for plain error. Pirani, slip op. at 6. 

Plain error review is governed by the four-part test of United States v. Olano,

507 U.S. 725, 732-36 (1993): 

before an appellate court can correct an error not raised at trial, there

must be (1) error, (2) that is plain, and (3) that affects substantial rights.

If all three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.

Pirani, slip op. at 7 (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)).

Paine has the burden of proving plain error. Olano, 507 U.S. at 734-35.

"Appellate review under the plain-error doctrine, of course, is circumscribed and we

exercise our power under Rule 52(b) sparingly." Jones v. United States, 527 U.S.

373, 389 (1999).

The first two Olano factors are satisfied here - the district court erred by

applying the guidelines as mandatory and the error is plain. Pirani, slip op. at 8.

"[W]here the law at the time of trial was settled and clearly contrary to the law at the
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time of appeal – it is enough that an error be 'plain' at the time of appellate

consideration." Johnson, 520 U.S. at 468. As for the third factor, Paine must show

a "reasonable probability that he would have received a more favorable sentence with

the Booker error eliminated by making the Guidelines advisory." Pirani, slip op. at

10. 

We have reviewed the record on appeal and conclude there is no reasonable

probability Paine can demonstrate the district court would have imposed a more

favorable sentence but for the Booker error. The district court sentenced him at the

low end of the applicable guideline range but standing alone that fact is "insufficient

. . . to demonstrate a reasonable probability that the court would have imposed a

lesser sentence absent the Booker error." Pirani, slip op. at 12. Thus, we find no

plain error. 

III

The order and judgment of the district court are affirmed. 

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