1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-10-1995

USA v Alonzo Harris

Precedential or Non-Precedential:

Docket 93-3632

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 N0. 93-3632 

 

 UNITED STATES OF AMERICA 

v. 

 ALONZO L. HARRIS 

 a/k/a "Letter" 

 Alonzo L. Harris, 

 Appellant 

 

 On Appeal From the United States District Court 

 For the Western District of Pennsylvania 

 (D.C. Crim. Action No. 93-cr-00123) 

 

 Argued June 23, 1994 

 BEFORE: STAPLETON and GREENBERG, Circuit Judges, and 

 FARNAN,* District Judge 

 (Opinion Filed January 10, 1995) 

 

 

Thomas S. White 

Federal Public Defender 

W. Penn Hackney, First Asst. 

Federal Public Defender 

Karen Sirianni Gerlach (Argued) 

Asst. Federal Public Defender 

415 Convention Tower 

960 Penn Avenue 

Pittsburgh, PA 15222 

Attorneys for Appellant 

Alonzo L. Harris 
 

* Honorable Joseph J. Farnan, Jr., United States District Judge 

for the District of Delaware, sitting by designation. 
Frederick W. Thieman 

United States Attorney 

Paul J. Brysh (Argued) 

Assistant U.S. Attorney 

Bonnie R. Schlueter 

Office of U.S. Attorney 

633 U.S. Post Office & Courthouse 

Pittsburgh, PA 15219 

Attorneys for Appellee 

 

 OPINION OF THE COURT

 

STAPLETON, Circuit Judge: 

 Alonzo Harris entered a conditional guilty plea to each 

of five counts charging him with armed bank robbery. His appeal 

from his conviction presents five issues: whether the court 

erred (1) in refusing to suppress a series of inculpatory 

statements given by Harris to various law enforcement personnel; 

(2) in declining to allow Harris to withdraw his plea on the eve 

of sentencing; (3) in failing to provide a sufficient explanation 

for its decision to raise Harris' criminal history level from 

category I to category VI pursuant to U.S.S.G. § 4A1.3; (4) in 

adding four points to Harris' offense level because the mace the 

district court found he had used on two tellers during one of the 

robberies was a "dangerous weapon" within the meaning of U.S.S.G. 

§ 2B3.1(b)(2)(D); and (5) by enhancing Harris' offense level an 

additional two points because, as a result of being "maced," the 

tellers sustained "bodily injuries" within the meaning of 

U.S.S.G. § 2B3.1(b)(3)(A). We will remand for resentencing. 
I. 

 On May 7, 1993, the Pittsburgh police obtained an 

arrest warrant for Harris in connection with a shooting at the 

Hampton Inn in the Oakland section of the city. Harris 

voluntarily surrendered the next day and was taken into custody. 

During the remainder of that day and the next, Harris provided 

the authorities with extensive tape recorded and written 

statements detailing his role in five bank robberies which 

occurred in 1992. Prior to the making of these statements, the 

police had not suspected him of committing any of these 

robberies. 

 Harris first described the robbery of the Morningside 

Branch of the Laurel Savings Association. According to Harris' 

statement, he drove to the bank in a van with a friend, Charlie 

Brown. As Harris entered the bank, he carried a pellet gun and a 

can of mace. According to Harris, he took money from two tellers 

and, as he fled, attempted to spray mace at one of them to 

prevent her from seeing the direction in which he fled. 

 Harris next described an October 23, 1992, robbery of 

the Fidelity Savings Association on East Ohio Street in 

Pittsburgh. Brown carried a pellet gun into the bank and took 

money from a teller, while Harris picked money out of a cash 

drawer. 

 On the day after being taken into custody, Harris 

talked about the other three robberies at issue here. First, he 

described the July 30, 1992, robbery of the Allegheny Valley Bank 
in Blawnox, during which he carried a toy gun. Next, Harris 

spoke of the June 29, 1992, robbery of the Laurel Savings 

Association in Etna. On this occasion, Harris carried a can of 

mace and Brown carried a gun. After a teller gave them the money 

in her cash drawer, Harris sprayed mace in the air. Finally, 

Harris described the June 15, 1992, robbery of the Integra Bank 

in New Kensington. Harris and a man named "Vernor" were wearing 

ski masks and had one gun between them. 

 After Harris made these initial statements, the FBI was 

contacted. On May 11, 1993, FBI agents obtained further 

statements from Harris regarding his role in several other 

crimes. 

 After being indicted for the robberies that occurred in 

1992, Harris filed a motion to suppress the statements he had 

given. Following an evidentiary hearing, the district court 

denied Harris' motion. Harris thereafter entered conditional 

pleas of guilty to the five counts of the indictment charging 

armed bank robbery and thereby preserved the suppression issue 

for appellate review. 

 On November 30, 1993, after the presentence report had 

been prepared and Harris' sentencing had been set for December 3, 

1993, Harris filed a motion to withdraw his guilty pleas. At the 

hearing originally scheduled as a sentencing hearing, the 

district court denied this motion, heard argument on several 

sentencing issues, and made tentative findings with respect to 

those issues. Counsel was given permission to file objections to 
the tentative findings by December 6, 1993, and sentencing was 

continued until that date. 

 Harris was ultimately assigned a total offense level of 

32, a criminal history category of VI, and a guideline sentencing 

range of 210-262 months. He was sentenced to concurrent 21-year 

terms of imprisonment (252 months); five years of supervised 

release; payment of restitution to the victim banks in the sum of 

$25,783; and a special assessment of $225. 

II. 

 Harris insists that the statements he sought to 

suppress were coerced. The district court found that they were 

not. We review the district court's finding of historic fact for 

clear error; our review of its ultimate conclusion regarding the 

absence of coercion is plenary. Miller v. Fenton, 474 U.S. 104, 

115-17 (1985); United States v. Walton, 10 F.3d 1024, 1027 (3d 

Cir. 1993). 

 In support of his contention that his "will was 

overborne" and that the waiver of his constitutional rights was 

not "the product of a rational intellect and a free will," App. 

97, Harris testified that he was intimidated by the fact that his 

legs were shackled, the fact that he was not free to leave the 

room in which he was questioned, and the fact that the officers 

with him in the room were wearing guns. He also testified that 

he had consumed forty ounces of "Old English" before he 

surrendered himself and that the effects of this consumption had 

not dissipated when he decided to confess. 
 The district court found that Harris had been advised 

of his constitutional rights on at least three occasions and that 

he had "voluntarily and understandingly" waived those rights. 

App. 149. It noted that the audio tapes established that Harris 

was "calm and rational" and "had no fear in his voice." Id. The 

court further noted that Harris had voluntarily surrendered and, 

as evidenced by Harris' own statements on the tape, he had been 

treated well by both the Pittsburgh police and the FBI. Finally, 

the court found that there was "no evidence" of threats, promises 

or pressures of any kind and "no credible evidence" that Harris 

was under the influence of alcohol. App. 149, 150. 

 There is ample evidence to support the district court's 

findings regarding the circumstances under which Harris' 

statements were given and, based on these findings, we conclude 

that Harris waived his constitutional rights voluntarily and with 

an understanding of the consequences of doing so. 

III. 

 At the hearing on his motion to withdraw his guilty 

pleas, Harris testified that "it was fear that drove" him to 

plead guilty and that he wanted to withdraw those pleas because 

he was "truly innocent." App. 193. However, he did not further 

explain the "fear" that had allegedly coerced the pleas, and he 

offered no evidence tending to show that the detailed accounts of 

the bank robberies in his statements were untrue. The district 

court declined to permit withdrawal. We will review its ruling 
under an abuse of discretion standard. United States v. Huff, 

873 F.2d 709, 712 (3d Cir. 1989). 

 Quoting from United States v. Jones, 979 F.2d 317, 318 

(3d Cir. 1992), the district court explained that a "defendant 

must . . . not only reassert [his] innocence, but give sufficient 

reasons to explain why contradictory positions were taken before 

the district court and why permission should be given to withdraw 

the guilty plea." App. 200. The court concluded that Harris had 

failed to explain his earlier statements and that, accordingly, 

his conclusory assertion of innocence was not credible. It 

further concluded that the reason Harris wanted to change his 

pleas was that he "had a change of heart after reading the 

presentence report and contemplating the possible sentence." 

App. 200. Citing United States v. Huff, 873 F.2d 709, 712 (3d 

Cir. 1989), the court concluded that this reason was inadequate 

to justify withdrawal. Finally, the district court noted that, 

under Third Circuit jurisprudence, withdrawal may be denied in 

circumstances like those before it even if no prejudice to the 

government is shown. See United States v. Martinez, 785 F.2d 111 

(3d Cir. 1986).1

 

1. In Martinez, we observed: 

 In evaluating a motion under Rule 32(d), 

we have looked primarily to three factors: 

"(1) whether the defendant asserts his 

innocence; (2) whether the government would 

be prejudiced by withdrawal; and (3) the 

strength of the defendant's reasons for 

moving to withdraw." [United States v.

Trott, 779 F.2d 912, 915 (3d Cir. 1985).] 

* * * * 
 We can find no fault with the district court's 

analysis, and its decision to deny the permission sought was well 

within the bounds of its discretion. 

IV. 

 Having concluded that Harris' conviction must stand, we 

turn to the more troublesome sentencing issues that he raises. 

The first concerns the district court's decision to raise his 

criminal history level from category I. 

 U.S.S.G. § 4A1.3 provides in relevant part: 

 If reliable information indicates that 

the criminal history category does not 

adequately reflect the seriousness of the 

(..continued) 

 . . . Martinez urges us to adopt the position 

of a minority of the courts of appeals that 

absent any showing of prejudice to the 

government, withdrawal should be freely 

granted. See generally United States v. 

Thompson, 680 F.2d 1145, 1150-51 (7th Cir.), 

cert. denied, 459 U.S. 1089, 103 S. Ct. 573, 

74 L. Ed. 2d 934 (1982). We are constrained, 

however, to reject this position as contrary 

to the 1983 amendments to Rule 32(d). The 

Advisory Committee Notes to the 1983 

amendments state that amended Rule 32(d) 

embodies the approach of United States v. 

Saft, 448 F.2d 1073 (2d Cir. 1977). Under 

that approach, "[t]he Government is not 

required to show prejudice when a defendant 

has shown no sufficient grounds for 

permitting withdrawal of a plea." Id. at 

1083. Thus, even assuming that the 

government has failed to show prejudice, we 

must affirm the district court's decision 

because Martinez has failed to demonstrate 

sufficient grounds for withdrawing his plea. 

785 F.2d at 114, 115-16. 
defendant's past criminal conduct or the 

likelihood that the defendant will commit 

other crimes, the court may consider imposing 

a sentence departing from the otherwise 

applicable guideline range. Such information 

may include, but is not limited to, 

information concerning: . . . (e) prior 

similar adult criminal conduct not resulting 

in a criminal conviction. 

 A departure under this provision is 

warranted when the criminal history category 

significantly under-represents the 

seriousness of the defendant's criminal 

history or the likelihood that the defendant 

will commit further crimes. 

* * * * 

 In considering a departure under this 

provision, the Commission intends that the 

court use, as a reference, the guideline 

range for a defendant with a higher or lower 

criminal history category, as applicable. 

For example, if the court concludes that the 

defendant's criminal history category of III 

significantly under-represents the 

seriousness of the defendant's criminal 

history, and that the seriousness of the 

defendant's criminal history most closely 

resembles that of most defendants with 

Criminal History Category IV, the court 

should look to the guideline range specified 

for a defendant with Criminal History 

Category IV to guide its departure. 

 In United States v. Hickman, 991 F.2d 1110 (3d Cir. 

1993), this court remanded a case for resentencing because it 

found that the district court had not properly completed the 

necessary step-by-step procedure that must occur prior to an 

increase under U.S.S.G. § 4A1.3. In Hickman, the defendant's 

prior record placed him in criminal history category III. The 

district court, however, believed that this resulted in a 
sentence which did not adequately represent Hickman's long 

history of similar conduct. Therefore, it departed upward under 

§ 4A1.3 by "doubling the top of the guideline range." Id. at 

1113. The district court gave no further explanation for the 

specific sentence. The record, however, reflected that the court 

was motivated by the fact that Hickman, at 65, was still engaged 

in criminal activity even though his history of fraud type 

offenses went back to 1953. 

 This court held in Hickman that a district court must 

follow the procedure contemplated by § 4A1.3 when choosing to 

depart upward from the criminal history category originally 

calculated for the defendant. 

 Under this [§ 4A1.3] regime, the court is 

obliged to determine which category (of those 

higher than the category originally 

calculated for the defendant) best represents 

the defendant's prior criminal history. The 

court then uses the corresponding sentencing 

range to "guide its departure." Moreover, 

the court is obliged to proceed sequentially 

through these categories. It may not move to 

the next higher category until it has found 

that a prior category still fails to 

adequately reflect the seriousness of the 

defendant's past criminal conduct. 

Id. at 1114. We then went on to quote the following passage from 

a Second Circuit case: 

 The reason for obliging a judge to 

examine the next higher categories in 

sequence is that these categories reflect the 

Commission's careful assessment of how much 

incremental punishment a defendant should 

receive in light of the various degrees of a 

prior record. 
Id. at 1114 (quoting United States v. Coe, 891 F.2d 405, 413 (2d 

Cir. 1989)). We ultimately concluded that, although the district 

court was justifiably outraged by the defendant's long history of 

fraud, the court erred when it "jumped more than three criminal 

history categories without explanation and, a fortiori, without 

going through the ratcheting procedure prescribed by the 

Guidelines." Id. 

 The presentence report in this case found that Harris 

had only one criminal history point resulting from a 1992 

conviction of robbery, reckless endangerment, and related 

offenses. Thus, the report gave him a criminal history category 

of I. However, the presentence report also listed Harris' 

extensive criminal background as a possible ground for departure. 

The report indicated that Harris was currently charged in four 

pending state prosecutions in Allegheny County. The first 

prosecution involved a murder. The second was for robbery and 

assault. The third prosecution consisted of 16 counts of robbery 

of various business establishments. The fourth consisted of 12 

counts of robbery of other businesses. According to the report, 

Harris had confessed his involvement in all of the pending 

charges. Harris also admitted that he had been present at a 

drug-related murder committed by another. 

 At sentencing, the district court exercised the 

authority conferred upon it by § 4A1.3, with the following 

explanation: 

 According to the probation officer, the 

criminal history category is one. 
 However, the probation officer stated 

that he believed the defendant's criminal 

behavior constitutes a criminal history 

category which is higher. We find that the 

appropriate criminal history category in this 

case is six. 

 We find that the application of criminal 

history categories two, three, four and five 

are too lenient for the conduct in this case. 

* * * * 

 Hence, we find [that] the information 

[concerning the defendant's criminal 

activity] is reliable and we further find 

that it is highly likely that if released, 

the defendant will commit other predatory 

street crimes. 

App. 277, 278. After describing the crimes charged in the 

indictments to which Harris had confessed, the court concluded: 

 Mr. Harris is a predatory street 

criminal who has a propensity for violence of 

the most egregious type. We find that he is 

a danger to the community and will repeat 

similar offenses if released. 

App. 279-80. 

 We agree with the government that Hickman does not 

"require the district court to go through a ritualistic exercise 

in which it mechanically discusses each criminal history category 

it rejects en route to the category that it selects." United 

States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993)(en banc). 

Hickman and the objective of the § 4A1.3 ratcheting process do 

require, however, that the sentencing court's reasons for 

rejecting each lesser category be clear from the record as a 

whole. While it is clear to us from the record that the district 

court justifiably regarded Harris' past record as horrendous and 
his prospects for the future abysmal, the requirements of § 4A1.3 

are not met by its declaration that "criminal history categories 

two, three, four and five are too lenient for the conduct in this 

case." App. 277. 

 First, the district court's conclusion that the lesser 

categories were "too lenient" suggests to us that its focus may 

have been on whether the result produced by the ratcheting 

process was appropriate, that is, on whether the sentencing range 

arrived at by using the lesser intervening categories was too 

lenient, in the eyes of the district court, for someone with 

Harris' past conduct and prospects for the future. This is 

precisely the kind of subjective judgment the ratcheting process 

was designed to avoid. The proper focus of § 4A1.3 analysis is a 

comparison of the frequency and seriousness of the conduct 

comprising the defendant's criminal history with the conduct of 

others who fall into each category. 

 Even if it were reasonably clear that the district 

court's analysis had the appropriate focus, however, we would 

still find the cryptic articulation of its reasoning too 

conclusory to permit us to perform our review function and 

attempt to assure the uniformity of sentencing that Congress 

sought to achieve. The insufficiency of the district court's 

explanation concerning the appropriateness of criminal history 

category VI and the inappropriateness of each lesser category is 

well illustrated by a consideration of the contentions of the 

parties regarding the appropriate criminal history category, 

contentions that were not commented upon by the district court. 
 Harris contends that he should be assigned a criminal 

history category no higher than the category he would have been 

assigned if he had been convicted of the charges reported by the 

presentence report to be pending against him. According to 

Harris, this would be a category III. He argues that if he were 

convicted for the crimes in paragraphs 86-89 of the presentence 

report, which were the basis for the upward departure, he would 

only receive a total of 6 points beyond the single point 

resulting from his conviction. The presentence investigator 

reported that under an existing plea agreement Harris would 

receive a single term of life imprisonment for all these crimes. 

Since he was to receive only one sentence for the four pending 

cases, according to Harris, these cases should be treated as 

yielding only one prior sentence under § 4A1.1(a).2 Thus, he 

would receive 3 points under § 4A.1(a), which directs the courts 

to add "3 points for each prior sentence of imprisonment 

exceeding one year and one month." Harris admits that he would 

also receive 3 additional points since all of the crimes involved 

violence.3 Harris thus concludes that if he had been sentenced 

 

2. Section 4A1.2(a)(2) states that "[p]rior sentences imposed in 

related cases are to be treated as one sentence for purposes of § 

4A1.1(a), (b), and (c)." The commentary to § 4A1.2 states that 

prior cases are "related" if they "were consolidated for trial or 

sentencing." U.S.S.G. § 4A1.2, comment. (n.3). 

3. Under § 4A1.1(f), the court is directed to add "1 point for 

each prior sentence resulting from a conviction of a crime of 

violence that did not receive any points under (a), (b) or (c) 

above because such sentence was considered related to another 

sentence . . . up to a total of 3 points." Thus, since all four 

prior cases involved crimes of violence, and since three of those 

cases did not receive additional points under § 4A1.1(a), one 
for the four cases pending in the Court of Common Pleas, he would 

have 6 total criminal history category points, placing him in 

category III, rather than category VI. 

 The government, on the other hand, points out that if 

each case charged in paragraphs 86-89 of the presentence report 

were resolved separately and Harris were sentenced in each case, 

he would receive an additional three points for each case, 

amounting to 12 additional points, enough to place him in 

category VI. This, the government insists, is the relevant 

consideration when the court is attempting to find the criminal 

history category that adequately reflects the defendant's prior 

criminal conduct and future prospects. 

 The task before the sentencing court in these 

circumstances is to identify the category which encompasses those 

defendants whose criminal histories "most closely resemble[]" the 

defendant's own. See U.S.S.G. § 4A1.3. Where the defendant has 

confessed to the commission of serious crimes for which he has 

not been convicted, it would certainly seem to us reasonable for 

a sentencing court to consider what the defendant's criminal 

history category would be if he had been convicted of those 

crimes. Moreover, when the conduct underlying the defendant's 

prior offenses is as transactionally unrelated as the conduct 

underlying the four prosecutions against Harris, adoption of the 

government's approach by the sentencing court would provide a 

(..continued) 

point for each of those cases would be added. See U.S.S.G. § 

4A1.1, comment. (n.6). 
sustainable basis for rejecting categories II, III, IV and V and 

embracing category VI. It is impossible to determine from this 

record, however, whether the district court adopted the 

government's approach. As we have noted, it commented on neither 

the government's nor Harris' analysis. This is not to say that 

§ 4A1.3 limits the court's discretion in a situation of this kind 

to a guideline calculation of the points that would have been 

received if pending charges were convictions. Indeed, § 4A1.3 is 

intended to provide flexibility in those cases where a point-bypoint calculation of the defendant's criminal history category is 

not alone sufficient to reflect his culpability and 

dangerousness.4 To this end, it confers discretion on the 

district court to consider the particular facts relating to a 

defendant's past criminal conduct in reaching a judgment on the 

seriousness of that conduct and the likelihood of recidivism. 

 A consideration of the relevant reliable data in this 

case could clearly lead a sentencing court to a conclusion that 

anything less than category VI would underrepresent the 

defendant's past criminal conduct. That is not the problem here. 

The problem is rather that we do not know what it was about the 

particular facts of Harris' case that led the district court to 

 

4. It is for this reason that we reject Harris' argument that 

his calculation leading to a criminal history category of III 

places a ceiling on the district court's authority to depart 

upward. We also note that his calculation may be flawed. If 

Harris is awarded an additional point for the conviction of armed 

robbery detailed in paragraph 81 of the presentence report, his 

total points, even adopting his theory, would appear to be 7, 

placing him in category IV. 
believe him more culpable and more dangerous than those for whom 

categories II, III, IV and V were intended. Accordingly, our 

decision in Hickman mandates resentencing. 

V. 

 The district court gave Harris a four point upward 

adjustment in calculating the sentence for the robbery charged in 

count IV because it viewed the mace Harris was found to have used 

on two tellers as a "dangerous weapon" within the meaning of 

U.S.S.G. 2B3.1(b)(2)(D).5 A "dangerous weapon" is defined in the 

Guidelines as "an instrument capable of inflicting death or 

serious bodily injury." U.S.S.G. § 1B1.1, comment. (n.1(d)). In 

turn, the Guidelines define a serious bodily injury 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 such as surgery, hospitalization, or 

physical rehabilitation." U.S.S.G. § 1B1.1, comment. (n.1(j)). 

Because the adjusted offense level for count IV was higher than 

the adjusted offense levels for the other four counts, it 

determined Harris' combined adjusted offense level. See U.S.S.G. 

§ 3D1.4. 

 The spray that Harris used during this bank robbery was 

a product called Phaser Mace which Harris purchased at an Army & 

Navy Store. At the hearing, the government, in support of its 

position that Phaser Mace spray was a dangerous weapon, 

 

5. U.S.S.G. § 2B3.1(b)(2)(D) provides: "if a dangerous weapon 

was otherwise used [during a robbery], increase by 4 levels." 
introduced a promotional "Bulletin" about a "pepper spray." The 

bulletin had been issued by Zarc International, Inc., the 

manufacturer of CAP-STUN, "an oleoresin capsicum ('OC') product 

used safely by law enforcement for more than a decade." App. 

230. This document reported the death of a man whom police had 

sprayed with a product called First Strike, a "pepper spray" 

manufactured by a competitor. The autopsy report was reported to 

have concluded the cause of death to be "asphyxia due to 

bronchospasm precipitated by pepper spray." Id. The Bulletin 

was careful to distinguish First Strike from CAP-STUN, which "has 

undergone extensive toxicological testing and has proven to 

present no potential danger to the human physiological system." 

App. 231. It noted that First Strike's ingredients were a "trade 

secret" and thus unknown and that it was "delivered in a liquid 

stream." Id. The Bulletin further cautioned that "until the 

ongoing investigations [into the death] are completed, 

conclusions about First Strike would be premature." App. 230. 

 The government also tendered the testimony of the 

probation officer who had prepared the presentence report. He 

expressed the opinion that, if a pepper spray could cause the 

death reported in the Bulletin, then the mace used by Harris 

"could also cause serious bodily injury." App. 241-42. 

 The only other relevant evidence before the district 

court on this issue was (1) a pamphlet tendered by Harris which 

had been published by the makers of Phaser Mace, and (2) the 

testimony of an FBI agent who arrived at the scene of the robbery 

and spoke with the tellers who had been sprayed. The pamphlet 
asserted that Phaser Mace had been used for many years without 

serious injury and that its effects lasted no longer than 10 to 

15 minutes. As the government stresses, however, it also states: 

 When an individual(s) receives a blast 

from the PHASER, he will experience extreme 

discomfort and disorientation. The first is 

usually a severe stinging/burning sensation 

to any affected part of the body. This is 

followed immediately by involuntary closing 

of the eyes due to the swelling of blood 

vessels causing temporary blindness. The 

victim will then experience respiratory 

problems and a choking sensation. All of 

this will occur within a matter of 1-2 

seconds. It is important to keep in mind 

that all this is happening to an individual 

who is totally unsuspecting. In the vast 

majority of occurrences the victim will also 

experience disorientation which creates a 

feeling of panic to accompany the other 

symptoms. These symptoms will last from 10-

15 minutes. 

* * * * 

 

 A one second burst of PHASER is 

sufficient to incapacitate the average 

person. 

App. 234. 

 On direct, the FBI agent testified: 

 Q. Did you debrief the two tellers 

concerning that bank: 

 A. Yes. 

 Q. Did they relate to you whether they were 

in need of any medical attention after being 

sprayed in the face with the mace by the 

defendant in this case? 

 A. Yes. An ambulance showed up, according 

to [the] teller, [sic] they both required 

medical attention for their eyes, and one had 

problems breathing. She had an asthma 

condition, I believe. 
App. 257-58. 

 On cross-examination, the agent provided the following 

context for his direct testimony: 

 Q. Now, you said that paramedics showed up 

after the robbery? 

 A. Yes. 

 Q. And they were treated by the paramedics, 

the two tellers, both tellers? 

 A. Yes, both of them received medical 

attention on the scene. 

 Q. That consisted of what -- washing out 

their eyes? 

 A. I wasn't present. All I observed was the 

emergency medical personnel walk into the 

bank and go towards both tellers. At that 

point I left the bank. 

 Q. So you don't know what type of treatment 

they were given? 

 A. No, sir. 

 Q. Neither teller was placed in the 

ambulance and taken to the hospital; is that 

correct? 

 A. Neither of them left the bank to the best 

of my knowledge. 

* * * * 

 Q. They were both able to talk to you? 

 A. Yes. 

 Q. And you interviewed them within an hour 

after their treatment, maybe less? 

 A. Probably less. 

 Q. Half hour, maybe even less than that . . .? 
 A. Half hour. 

App. 258-59. 

 The district court's findings on this issue and the one 

addressed in the next section of this opinion were articulated 

together at the sentencing hearing: 

 The probation officer . . . added four 

points because the defendant used a dangerous 

weapon, that is, spraying mace in the face of 

the bank teller and thereby increased his 

base offense level by four. 

 That conclusion is supported by a 

preponderance of the evidence. The probation 

officer then added two additional points 

because the offense involved the spraying of 

mace in the face of a bank teller and 

increased two levels for bodily injury, 

generating an adjusted offense level of 28. 

Each of those findings are supported by a 

preponderance of the evidence. 

 We find that use of mace during the 

commission of a felony constitutes infliction 

of serious bodily injury with a dangerous 

weapon. The evidence preponderates the use 

of mace is a dangerous weapon and constitutes 

infliction of serious bodily injury. 

 . . . we find that a victim of mace sustains 

a significant injury. Indeed, there is 

evidence of record, too, that two tellers 

required immediate medical attention, and 

there is further evidence of record of a 

death that was caused in North Carolina 

following the application of mace. Such 

evidence should not be ignored. 

App. 274-75. 

 The parties agree that the government had the burden of 

proving by a preponderance of the evidence that Harris used an 

"instrument capable of inflicting death or serious bodily 
injury." See United States v. Miele, 989 F.2d 659, 663 (3d Cir. 

1993). Moreover, we have insisted that "[i]nformation used as a 

basis for sentencing under the Guidelines must have 'sufficient 

indicia of reliability to support its probable accuracy.'" Id. 

(quoting U.S.S.G. § 6A1.3(a)). Indeed, we have counseled that 

"this standard should be applied rigorously." Id. at 664. 

 We hold that the government did not meet its burden and 

that the district court erred in adding four points to the 

sentencing calculation for count IV based on the current record. 

The Zarc Bulletin lacked sufficient indicia of reliability for 

the purpose for which it was used by the district court. First, 

it was promotional literature emanating from a competitor of the 

product which may have caused the reported death in North 

Carolina. Second, even this competitor, with its inherent bias, 

acknowledged that the limited information about the incident 

rendered conclusions about the dangerousness of First Strike 

"premature." Third, and most important, the district court 

lacked any basis for determining what First Strike is and whether 

it bears any significant resemblance to Phaser Mace. The 

probation officer's testimony, based as it was on the Bulletin, 

similarly lacked reliability. 

 The most probative evidence available to the district 

court of the capabilities of Phaser Mace was its own promotional 

literature. That literature reported that it had been used for 

many years without serious injury. Although the district court 

would have been justified in discounting this claim on the basis 

of its source, a discounted claim cannot carry the government's 
burden in the absence of any evidence calling it into question. 

The remainder of the pamphlet provides no reason to question that 

claim. While it describes "temporary blindness," "respiratory 

problems," "a choking sensation," "disorientation," and a 

"feeling of panic," all of this is accompanied by the assurance 

that these effects last only 10 or 15 minutes and leave no 

residual incapacity. 

 Phaser Mace is thus clearly reported in its promotional 

literature to be incapable of causing death. Although that 

literature refers to "extreme discomfort," we do not believe that 

this claim, particularly given its self-serving nature, provides 

a reliable basis for concluding that Phaser Mace inflicts 

"extreme pain" as that term is used in the definition of serious 

bodily injury. It necessarily follows that the promotional 

pamphlet provides an inadequate basis for concluding that Phaser 

Mace is a dangerous weapon. Finally, the very limited testimony 

of the FBI agent about the effect of Phaser Mace on the two 

tellers is entirely consistent with the claims of the pamphlet 

and adds little to the government's case. 

VI. 

 The final issue presented by this appeal is whether the 

district court erred when it increased Harris' offense level for 

count IV by two under U.S.S.G. § 2B3.1(b)(3)(A) because two 

tellers were found to have sustained "bodily injuries" as a 

result of being sprayed with mace. 
 Section 2B3.1(b)(3) establishes a graduated scale for 

those cases in which a victim "sustained bodily injury": 

 If any victim sustained bodily injury, 

increase the offense level according to the 

seriousness of the injury: 

 Degree of Bodily Injury Increase in Level

 (A) Bodily Injury add 2 

 (B) Serious Bodily Injury add 4 

 (C) Permanent or Life-Threatening 

 Bodily Injury add 6 

 (D) If the degree of injury is between that 

specified in subdivisions (A) and (B), add 3 

levels; or 

 (E) If the degree of injury is between that 

specified in subdivisions (B) and (C), add 5 

levels. 

 The Application Notes of U.S.S.G. § 1B1.1 provide the 

following definitions for the terms used in this graduated scale: 

 "Bodily injury" means any significant injury; 

e.g., an injury that is painful and obvious, 

or is of a type for which medical attention 

ordinarily would be sought. 

 "Serious bodily injury" means injury 

involving extreme physical pain or the 

impairment of a function of a bodily member, 

organ, or mental faculty; or requiring 

medical intervention such as surgery, 

hospitalization, or physical rehabilitation. 

 "Permanent or life-threatening bodily injury" 

means injury involving a substantial risk of 

death; loss or substantial impairment of the 

function of a bodily member, organ, or mental 

faculty that is likely to be permanent; or an 

obvious disfigurement that is likely to be 

permanent. 

 Where a particular situation falls on this analogue 

scale is an issue the Commission clearly intended to be resolved 
on a case-by-case basis after a fact-specific inquiry into the 

circumstances of the particular crime and its impact on the 

victims. See United States v. Robinson, 20 F.3d 270, 278-79 (7th 

Cir. 1994); United States v. Lancaster, 6 F.3d 208 (4th Cir. 

1993). A sentencing court's resolution of this issue is a 

finding of fact that will be disturbed on appellate review only 

if clearly erroneous. See United States v. Ortiz, 878 F.2d 125, 

126 (3d Cir. 1989). 

 The district court in this case made only one brief 

reference to the particular circumstances of this case, citing 

the FBI agent's testimony that the tellers "required immediate 

medical attention." The court's primary focus, however, was not 

on what happened in this case. It found the reported North 

Carolina death important and cast its ultimate finding in terms 

of the non-case-specific conclusion that "a victim of mace 

sustains a significant injury." App. 275. 

 The difficulty with the district court's approach can 

best be illustrated by comparing two cases from other courts of 

appeals which present the question of whether a victim of the 

defendant's crime had received "bodily injury" from mace. 

 In United States v. Lancaster, 6 F.3d 208 (4th Cir. 

1993), a security guard had been sprayed with mace during a 

robbery and had suffered "severe burning in his eyes and cheeks." 

Id. at 209. The district court found that no "bodily injury" 

occurred. The court of appeals held that this finding was not 

clearly erroneous. In the course of doing so it observed: 
 While the burning in [the security guard's] 

eyes and cheeks caused by the mace was 

undoubtedly unpleasant, and could not be 

described as wholly trivial, it was only 

momentary and the mace produced no lasting 

harm. 

Id. at 210. 

 The Lancaster court gave the following explanation of 

why the district court's finding was consistent with the 

Guideline's definition of "bodily injury" as, inter alia, "an 

injury that is painful and obvious, or is of a type for which 

medical attention ordinarily would be sought." U.S.S.G. § 1B1.1, 

comment. (n.1(b)). 

 Trivial injuries are not noticeably painful 

nor are they normally obvious to an observer. 

A momentary injury may be immediately 

"painful," but it is not "obvious" as we feel 

that term is intended in this context because 

it disappears quickly. 

 It is also consistent with Application 

Note 1(b)'s elaboration of "significant 

injury" as being an injury "of a type for 

which medical attention ordinarily will [sic] 

be sought." Medical attention is not 

ordinarily sought for wholly trivial 

injuries. And while people who have 

sustained purely momentary injuries may often 

choose to be examined by a doctor as a 

precautionary measure to ensure that they 

have sustained no lasting harm, we do not 

understand such precautionary examinations to 

be the type of "medical attention" that the 

Guidelines contemplate to make an injury 

"significant." 

Lancaster, 6 F.3d at 210 n.2. 

 In United States v. Robinson, 20 F.3d 270 (7th Cir. 

1994), the court upheld, as not clearly erroneous, the district 
court's determination that bank tellers had suffered a "bodily 

injury" after being sprayed with mace: 

 The bank tellers who were sprayed 

experienced pain which lasted for hours and 

had some residual effect for days. The 

district court could properly make the 

factual finding that this was painful and 

obvious. 

The court distinguished Lancaster on the grounds that the injury 

suffered by the security guard was only momentary. 

 These two cases demonstrate the necessity of sentencing 

courts making a factually specific inquiry in each case as to 

whether the injury was "painful and obvious," was "of a type for 

which medical attention ordinarily would be sought," or was more 

than insignificant for some other reason. The degree of injury 

from mace will differ depending on such factors as the strength 

of the particular product used, the distance between the victim 

and the dispenser, and the angle of delivery. Accordingly, there 

will undoubtedly be crimes involving the use of mace where no 

"bodily injury" will occur, just as there will be such crimes 

where a victim will experience such injury. 

 We are thus unable to sustain the district court's 

assignment of two points under § 2B3.1(b)(3)(A) based on its 

conclusion that "a victim of mace sustains a significant injury." 

Nor can we uphold its assignment based on the court's reference 

to "immediate medical attention." The FBI agent did not know, 

and the record does not otherwise reveal, the character of the 

attention given by the paramedics to the tellers, and we agree 

with the Lancaster court that not all contact between a victim 
and a health care professional will justify a conclusion that 

"bodily injury" occurred. The example relating to medical 

attention in the definition of "bodily injury" is intended to 

provide an objective basis for distinguishing significant from 

insignificant injuries. If, as in Lancaster, medical attention 

would be sought by an ordinarily prudent person for the purpose 

of diagnosis but no treatment ensues, that attention does not 

help to establish the significance of the injury. Lancaster, 

6 F.3d at 210. 

 The record also does not disclose anything about the 

degree of pain experienced by the tellers. Moreover, while a 

trier of fact might conceivably draw an inference from the FBI 

agent's testimony that they had injuries obvious to an observer, 

this is not a necessary inference and it is not one that the 

district court drew. 

 On remand, the district court should determine the 

character and duration of the symptoms experienced by the 

tellers, as well as the character of the "medical attention" they 

received. Only then will it be in a position to determine 

whether Harris' mace inflicted "bodily injury" within the meaning 

of § 2B3.1(b)(3)(A). 

 We add one final note for the guidance of the district 

court when it reevaluates the available reliable evidence and 

makes its findings. We do not read the Guidelines, as did the 

Lancaster court, to require that an injury be painful and obvious 

for a substantial period of time in order to qualify as a "bodily 

injury." See Lancaster. 6 F.3d at 210 & n.2. Moreover, we think 
it likely that cases involving mace will arise in which a finding 

of bodily injury will be appropriate despite the absence of 

prolonged effects. Our thought can be illustrated by reference 

to the promotional literature for Phaser Mace. As we have 

suggested, given their source and purpose, a trier of fact should 

take the claims in Phaser's promotional literature about its 

immediate effects with a "grain of salt." Nevertheless, if the 

record in a case established that a maced bank teller had 

symptoms accurately described by those claims for a period of 

more than a moment or two, we believe a district court would be 

justified in concluding that he or she had received a "bodily 

injury." A blow the effects of which can be shaken off in a 

moment or two may well be an insignificant injury. Blindness, 

disorientation, breathing difficulty, and extreme discomfort 

sufficient in combination to induce panic for a period of ten to 

fifteen minutes are something else entirely and can rationally be 

viewed as more than an insignificant injury. 

 
VII. 

 The judgment of the district court will be reversed and 

this matter will be remanded for resentencing only.