NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 23

- 2371

___________

UNITED STATES OF AMERICA

v.

RALPH MAXWELL,

Appellant

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2

- 22

- cr

- 00127

- 00 1)

District Judge: Honorable R. Barclay Surrick

____________

Submitted Under Third Circuit L.A.R. 34.1(a)

September 6, 2024

Before: JORDAN, HARDIMAN, and PORTER, Circuit Judges

.

(Filed: September 9

, 2024 )

____________

OPINION *

____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.2

HARDIMAN, Circuit Judge

.

Ralph Maxwell appeals his judgment of sentence for bank robbery and attempted

robbery. He argues for the first time on appeal that the District Court erroneously

accepted his guilty plea and failed to resolve a factual dispute. His first argument does not

surmount the substantial obstacle of plain error review and his second argument was

waived in the District Court. We will affirm.

I

Between February and March 2022, Maxwell robbed three banks in the

Philadelphia area. Each time, Maxwell slipped the bank tellers a fanny pack and a note

demanding money. At the third robbery, Maxwell ’ s note read: “ [T]his is a robbery,

quickly and quietly put twenty thousand dollars in the bag. No dye, no tracer bills, no

alarms until I ’ m gone or I will shoot the first person behind me

. . . . Please don ’ t let

anyone die.” App. 42. He then warned another employee not to “ play with [ him ], while

holding up his jacket and displaying ” a walkie

- talkie on his hip

, which the employee

“ believed to be a firearm.” App. 43

.

A week later, Maxwell attempted to rob a tow truck driver at gunpoint. Maxwell

opened the driver ’ s door, pointed a gun at him, and demand ed : “ Give me the money or

I ’ll shoot you.” App. 45. After the driver kicked him

, Maxwell fire d a shot that struck the

driver in the right hand and grazed his neck. As Maxwell fled

, the driver flagged down

police officers and received medical treatment

. Maxwell was arrested and indicted for

two counts of bank robbery

, see 18 U.S.C. § 2113(a), one count of armed bank robbery

,3

see 18 U.S.C. § 2113(d)

, and one count of attempting to interfere with interstate

commerce by robbery in violation of the Hobbs Act, see 18 U.S.C. § 1951(a).

Maxwell pleaded guilty to four counts without a plea agreement. 1 The Presentence

Investigation Report (PSR) calculat ed Maxwell’s final advisory Guidelines’ range as 135

to 168 months’ imprisonment. That included an enhancement for causing “permanent or

life

- threatening bodily injury” to the truck driver

, who reported that the bullet pierced

three fingers

, causing loss of feeling and function in his right hand

. U.S.S.G.

§ 2B3.1(b)(3)(C).

Maxwell did not object to the PSR’s Guidelines calculation

, but he requested a

downward variance to a 10

- year sentenc e and objected to the PSR’s finding that the

driver suffered permanent or life

- threatening bodily injury

. App. 73

. Maxwell’s counsel

conceded that the driver ’s degree of injury “ha[d] no impact for purposes of [Maxwell’s]

sentencing guideline range

, ” and “only raise[d] that [issue]” because it might affect “the

Bureau of Prisons’ evaluation of [Maxwell’s] security level” and how he might be

“housed within the Bureau of Prisons’ system.” App. 72, 74.

Unmoved by Maxwell’s request for leniency, the District Court sentenced him to

the top of the Guidelines range ( 168 months’ imprisonment ) followed by five years’

supervised release. The District Court cited Maxwell’s criminal history of robbery and

drug possession and the “very, very serious” nature of his crimes. App. 119

– 20. The

1 Maxwell was indicted on a fifth count under 18 U.S.C. § 924(c)(1)(A)(iii) for using and

carrying a firearm during and in relation to a crime of violence. The G overnment moved

to dismiss the charge, however, which the District Court granted.4

District Court did not address the extent of the driver ’s injury before imposing sentence

,

and Maxwell filed this timely appeal

.

II 2

A

Because Maxwell did not object when the District Court imposed sentence, we

review only for plain error. See United States v. Knight

, 266 F.3d 203, 206 (3d Cir.

2001)

. Maxwell claims the District Court plainly erred in accept ing his guilty plea to

armed bank robbery under 18 U.S.C. § 2113(d) because he did not possess a “dangerous

weapon or device” during the third bank robbery

. See United States v. Cefaratti

, 221 F.3d

502, 509 (3d Cir. 2000 ) ( requiring a factual basis to support a guilty plea ). He contends

the District Court’s error was plain because a conviction for armed robbery “ requires use

of a real or at least ‘ look

- alike ’ dangerous weapon ” such as a toy gun or replica

, Maxwell

Br. 19 (cleaned up)

, and his walkie

- talkie was not a “ dangerous weapon or

. . . imitation

‘ device

, ’ ” Maxwell Br. 3 (quoting 18 U.S.C. § 2113(d) ). The error prejudiced him, he

argues

, because his conviction under § 2113(d) permitted the District Court to sentence

him to five years of supervised release

— two years more than the statutory maximum for

bank robbery under § 2113( a )

. He asks us to vacate his judgment of sentence and remand

for resentencing subject to § 2113(a) ’s statutory maximum.

Maxwell’s arguments are unpersuasive. As we held in United States v. Beckett

, a

“weapon or device need not actually be capable of inflicting severe bodily harm or injury

2 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742.5

upon another [,]

. . 

### . r ather, a weapon or device may be considered to be dangerous if it

instills fear in the average citizen creating an immediate danger that a violent response

will follow.” 208 F.3d 140, 152 (3d Cir. 2000) (quoting the district court’s jury

instruction)

. In that case

, the defendant used common store

- bought items

— including a

shoe box, masking tape, antenna, light, and wrapping paper

— to assemble hoax bomb s

that he wore during several bank robberies. See i d. at 143

– 45. Though none of these

items was capable of inflicting harm, we held the hoax bombs were “dangerous weapons”

under § 2113(d)

. Id. at 152.

For an error to be plain, it must be “c lear or obvious, rather than subject to

reasonable dispute .” Puckett v. United States

, 556 U.S. 129, 135 (2009)

. One could

c redibly argue that Beckett ’s reasoning applies to Maxwell’s use of the walkie

- talkie.

Under Beckett

, we do not consider solely whether the defendant’s device was capable of

inflicting harm or was a replica weapon

, but whether the device was arranged and

displayed in a manner that would instill fear of violence in a reasonable person. See

Beckett

, 208 F.3d at 152. Maxwell asserts that “ the average citizen would not mistake the

walkie

- talkie for a gun ,” pointing to “ security footage indicat [ing] he wore the walkie

talkie openly

. . . to give the impression of a construction worker. ” Reply Br. 6

– 7.

Yet Maxwell admits “ that [he] created the impression of a gun by obscuring the

walkie

- talkie’s appearance, i.e., keeping it under his jacket for all but an instant

. ” Reply

Br. 7 (emphasis added); see also App. 43 (noting Maxwell “h[eld] up his jacket and

display [ed] what that teller believed to be a firearm on [Maxwell’s] hip ”). Additionally,

Maxwell threatened to “ shoot the first person behind [him], ” App. 105, so it was6

reasonable for the bank teller “to take [Maxwell] at his word” that he had a gun and was

willing to use it

. United States v. Wolfe

, 245 F.3d 257

, 263 (3d Cir. 2001)

.

In sum, the District Court did not plainly err when it held that Maxwell’s conduct

supported a charge for armed bank robbery under 18 U.S.C. § 2113(d)

. So we will affirm

the District Court’s judgment of conviction on Count III

.

B

Second, Maxwell argues that the District Court neglected its duty under Rule 32 of

the Federal Rules of Criminal Procedure to “ rule on the dispute [d]” issue of the truck

driver ’s injury “ or determine that a ruling [was] unnecessary either because the matter

will not affect sentencing, or because the court will not consider the matter in

sentencing .” Fed. R. Crim. P. 32 (i)(3)(B). He seeks remand for the District Court to

resolve the factual dispute upon resentencing. He argues that this purported error

prejudiced him because “[i]t is likely the district court would have exercised its

[sentencing] discretion more leniently had it confronted the infirmities in the [ driver ’s ]

claim of injury. ” Maxwell Br. 31

.

We hold that Maxwell waived this argument when his counsel stated at sentencing

that he “ only raise[d]” the disputed issue of the driver ’s injury because it had the potential

to affect the D efendant’s Bureau of Prisons ( BOP ) assignment and security level. App. 72

(emphasis added). By raising the issue of the driver ’s injury exclusively for this narrow

purpose, Maxwell “intentional [ly] relinquish [ed]” and “ abandon [ed]” his argument that

the District Court’s failure to resolve the issue resulted in a higher sentence. United States

v. James

, 955 F.3d 336, 344 (3d Cir. 2020) (quoting United States v. Olano

, 507 U.S.7

725, 733 (1993) )

. And although we “strictly enforce[]” Rule 32

, we have not eliminated

the duty to object to a Rule 32 “ procedural error when it becomes evident

. ” United States

v. Dawson

, 32 F.4th 254, 268

, 270 (3d Cir. 2022) ( cleaned up ). Here, counsel raised the

matter of the truck driver ’s injury in the District Court only to the extent it might affect

Maxwell’s BOP security level and housing assignment

. So it would be inappropriate for

us to address his new argument that the Court’s failure to resolve the issue adversely

affected his sentence.

* * *

For the reasons stated, we will affirm the District Court’s judgment of sentence.