UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5842

LARRY RICKY YOUNG,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 94-5892

LARRY RICKY YOUNG,

Defendant-Appellee.

Appeals from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, District Judge.

(CR-93-263-MU)

Submitted: April 30, 1996

Decided: June 14, 1996

Before MURNAGHAN and WILKINS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

Charles L. Morgan, Jr., Charlotte, North Carolina, for Appellant.

Mark T. Calloway, United States Attorney, Robert J. Conrad, Jr.,

Assistant United States Attorney, Charlotte, North Carolina, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Larry Ricky Young appeals the 108-month sentence he received

after he was convicted of conspiracy to rob an armored vehicle, 18

U.S.C.A. § 371 (West 1966 & Supp. 1996); obstruction or delay of

commerce by robbery, 18 U.S.C.A. § 1951 (West 1984 & Supp.

1996), 18 U.S.C. § 2 (1988); bank robbery and bank larceny, 18

U.S.C.A. § 2113(a), (b) (West Supp. 1996), 18 U.S.C. § 2; and interstate transportation of stolen money, 18 U.S.C.A.§ 2314 (West Supp.

1996), 18 U.S.C. § 2. He contests the district court's enhancement of

his sentence for obstruction of justice, for having a leadership role in

the offense, and for abusing a position of trust. United States Sentencing Commission, Guidelines Manual, #8E8E # 3C1.1, 3B1.1(c), 3B1.3

(Nov. 1993). The government appeals the district court's decision not

to enhance Young's sentence for use of a dangerous weapon. USSG

§ 2B3.1(b)(2)(E). We affirm in part, but vacate the obstruction of justice adjustment and remand for resentencing.

Young worked as the driver of a Wells Fargo armored van and

made daily deliveries of cash to First Union National Bank automatic

teller machines in Charlotte, North Carolina. He and a friend, Christopher Matthews, devised a scheme to steal money from the van. While

Young put fuel in the van at a gas station, Matthews shocked him

from behind with a stun gun, took his keys, and drove the van to a

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nearby hiding place. Young had previously placed most of the cash

to be delivered that day in a plastic bag which was on the floor in the

cargo area of the van rather than in the safe. Young had also deactivated the alarm system in the van.

Matthews and a friend, Calvin Prince, flew to Baltimore where

Matthews checked them into a hotel using Young's name and college

identification card. Matthews attempted to give Young's half of the

money to Young's former girlfriend for safekeeping, as he had been

instructed to do, but she refused to take it. Matthews, Young, and

Prince were arrested within a few days. Matthews and Prince entered

guilty pleas to bank larceny. Matthews testified at Young's trial that

Young had come up with the idea of using a stun gun and had given

him money to buy the gun.

Young first contends that the district court failed to find that he

committed perjury in his trial testimony and thus did not comply with

the requirement of United States v. Dunnigan, 507 U.S. 87, 95 (1993),

that the court make an independent finding that the defendant committed perjury before making an adjustment on that basis. We agree

that a remand is necessary for the district court to make the necessary

findings.

The district court accepted the probation officer's recommendation

for an adjustment based on Young's false testimony that he was not

involved in the robbery. However, the court did not find that Young

had, in fact, testified untruthfully. The court did not make any finding

concerning whether the adjustment could be made based on the alternative ground that Young gave false information to investigating

agents before his arrest. The district court's failure to make an independent finding that Young committed perjury rather than testified

falsely as a result of confusion, mistake, or a faulty memory requires

a remand for compliance with Dunnigan. See United States v. Smith,

62 F.3d 641, 647 (4th Cir. 1995).

Young next maintains that the district court's finding concerning

his leadership role in the offense was insufficient. The probation officer recommended a 2-level enhancement because Young made the

critical decisions concerning the nature and timing of the robbery,

suggested the use of the stun gun, gave Matthews money to buy a stun

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gun, and told Matthews where to find the money in the van. Young

offered no argument on this issue in the district court, only a denial

that he was a leader. The district court's brief finding is adequate to

support the adjustment because the basis for the adjustment was clear.

A 2-level adjustment is appropriate if the defendant has "abused a

position of public or private trust . . . in a manner that significantly

facilitated the commission or concealment of the offense." USSG

§ 3B1.3. A position of trust is one "characterized by professional or

managerial discretion." The adjustment does not apply in the case of

theft or embezzlement by an ordinary bank teller. USSG § 3C1.3,

comment. (n.1). The district court's determination that the defendant

abused a position of trust is reviewed under the clearly erroneous

standard. United States v. Helton, 953 F.2d 867, 869 (4th Cir. 1992).

The district court found that Young's position was functionally

equivalent to that of a bank teller, but was nonetheless a position of

trust because he was trusted with such large sums of money. Young

argues that the adjustment did not apply because his position was, like

a bank teller's, lacking in professional or managerial discretion.

In United States v. Gordon, 61 F.3d 263, 269 (4th Cir. 1995), this

court distinguished the position of an ordinary bank teller who has

"little trust to abuse" because she is closely supervised, from that of

a head teller who has access to highly sensitive bank security information which she may pass on to outsiders to facilitate a robbery.

Gordon held that the enhancement is approached from the perspective

of the victim, and does not turn on formalistic job descriptions, but

depends on whether the employee has special duties or access to special information, the degree of supervision the employee works under,

and whether the employee's actions render him more culpable than

others who hold similar positions. Id. (citations omitted).

Unlike a bank teller who handles the bank's money only in the

bank under close supervision, Young routinely had close to half a million dollars in his sole custody under no supervision at all. He knew

how to deactivate the alarm system in the armored van to allow an

outsider to enter, and he did so. Under the analysis used in Gordon,

the district court did not clearly err in finding that Young occupied

and abused a position of trust.

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Finally, the government appeals the district court's decision not to

give Young a 3-level increase because a dangerous weapon was brandished, displayed, or possessed during the offense. The government

argues that a stun gun is by definition a dangerous weapon and that

the issue should be reviewed de novo. Young maintains that the district court made a factual determination that, as used in this case, the

stun gun was not a dangerous weapon, and that the court's finding

should be reviewed for clear error. In this case, Young's position is

the better one.

A "dangerous weapon" is defined in the guidelines as an instrument

capable of inflicting death or a serious bodily injury. USSG § 1B1.1,

comment. (n.1(d)). A "serious bodily injury" is defined as an injury

involving extreme physical pain or the impairment of a function of a

bodily member, organ, or mental faculty, or requiring medical intervention. USSG § 1B1.1, comment. (n.1(j)). The stun gun rendered

Young unconscious for a short time and afterward he complained of

nausea and of pain in his lower back, where two welts were visible.

However, there appears to have been no significant injury. Young was

briefly examined by medics, but, at the same time, he answered a

police officer's questions, then went to the spot where police had discovered the abandoned Wells Fargo van and gave a written statement.

He was interviewed by the FBI on the two following days.

The government argues that because the term "dangerous weapon"

has been broadly construed by this Court and other circuit courts to

include various innocuous objects used as weapons and unloaded or

inoperable firearms used to threaten others, a stun gun should also

come within the definition of a dangerous weapon. The government

points out that the commentary to USSG § 2B3.1 directs that an

object which appears to be a dangerous weapon should be treated as

such. USSG § 2B3.1, comment.(n.2).

However, in this case the stun gun was not used to intimidate or

harm anyone other than Young, and then only to create the appearance of a real robbery. Although a stun gun used to incapacitate or

threaten victims or bystanders would qualify for the enhancement, we

find that, in the particular circumstances of this case, the district court

made a factual decision which was not clearly erroneous. The two

cases principally relied on by the government are distinguishable. In

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United States v. Agron, 921 F.2d 25, 26 (2d Cir. 1990), the defendant

possessed a stun gun during a drug conspiracy and the Second Circuit

found that it qualified as a dangerous weapon under USSG

§ 2D1.1(b)(1). The potential for violence in connection with drug

dealing is well-established; therefore, a weapon capable of producing

even temporary impairment necessarily is a dangerous weapon in that

context. This Court's decision in United States v. Sturgis, 48 F.3d

784, 787-89 (4th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W. 3242

(U.S. Oct. 2, 1995) (No. 94-9367), deals with a conviction for assault

with a dangerous weapon under 18 U.S.C. § 113(c) (1988), (current

version at 18 U.S.C.A. § 133(a)(3) (West Supp. 1995)), rather than

with an enhancement under the sentencing guidelines. However,

Sturgis is instructive because it holds that the question of "whether a

particular object was used as a dangerous weapon is not so mechanical that it can be reduced to a question of law." 48 F.3d at 788.

Rather, it involves "a functional inquiry into the use of the instrument

rather than a metaphysical reflection on its nature." Id. To the extent

that it is relevant in a guideline case, Sturgis supports the district

court's decision.

We therefore affirm Young's sentence with the exception of the

obstruction of justice adjustment. The sentence is vacated and

remanded for reconsideration of that issue. On remand, the district

court should make an independent finding that Young committed perjury, or that the adjustment is warranted on other grounds, or resentence him without it. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED 

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