In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4181

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEITH E. BRAZINSKAS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 05 CR 50030-1—Philip G. Reinhard, Judge.

____________

ARGUED MAY 11, 2006—DECIDED AUGUST 15, 2006

____________

Before POSNER,EASTERBROOK,and WOOD, Circuit Judges.

WOOD, Circuit Judge. After pleading guilty to bank

robbery in violation of 18 U.S.C. § 2113(a), Keith

Brazinskas was sentenced to 120 months in prison. In

calculating the advisory sentencing guideline range, the

district court added two levels to Brazinskas’s base level for

use of a minor to commit the offense. See U.S.S.G. § 3B1.4.

In this appeal, Brazinskas claims that the facts do not

support that enhancement. We conclude that the district

court’s factual findings were not clearly erroneous, that the

district court correctly decided that it did not matter

whether Brazinskas actually knew that his assistant was a

minor, and that the sentence is otherwise reasonable. We

therefore affirm.
2 No. 05-4181

I

On March 24, 2005, Brazinskas agreed to assist Cortney

Hall and Robert Eviston with a bank robbery they planned

to commit. That morning, Eviston, along with his 16-yearold girlfriend, Cassandra Guevara, drove Brazinskas to

the Associated Bank in Rockford, Illinois. Eviston and

Brazinskas had included Guevara in the group in the hope

that this would help them to evade the police during the

robbery. Once at the bank, Brazinskas entered through the

front door, armed with a BB gun. He handed the bank teller

a plastic bag and told the teller to fill it with money. The

teller complied, placing $3,850 in the bag, $200 of which

was marked or “bait bills.” The teller also slipped in a red

ink dye pack. Brazinskas then walked back out the front

door and met Eviston at the back of the bank.

After leaving the bank, Brazinskas jumped into the trunk

of Eviston’s car, which Guevara had opened for him. At that

point, things began to go awry. As soon as the trunk was

closed, the dye pack exploded, staining the money (and

Brazinskas) with red ink and causing the trunk to fill with

smoke. Brazinskas yelled for Eviston to stop. When Eviston

heard him and got Brazinskas out of the trunk, Brazinskas

discarded the bag he had used in a nearby river.

Brazinskas, Eviston, and Guevara returned to Hall’s home,

where they tried to wash the red dye off of the money.

Eviston then buried some of the money in Hall’s back yard,

hoping to hide it from the police. With the aid of a confidential informant, who apparently was at Hall’s house during

this time, Brazinskas was arrested at 3:00 am the next day.

The grand jury indicted Brazinskas on one count of bank

robbery. Initially, he pleaded not guilty, but later he

changed his plea to guilty on July 22, 2005. According to

U.S.S.G. § 2B3.1, his base offense level was 20. The government argued that a two-point increase in this level was

appropriate under U.S.S.G. § 2B3.1(b)(1), because the stolen
No. 05-4181 3

property belonged to a financial institution (which, the

government was careful to show, was insured at the

relevant time by the Federal Deposit Insurance Corporation). The government also argued that enhancements were

appropriate because Brazinskas had used a dangerous

weapon during the commission of the offense and because

he had used a minor to help him escape. With all of these

enhancements, as well as a three-level reduction for

acceptance of responsibility, Brazinskas’s final offense level

was 25 and his criminal history category was VI. This led to

an advisory sentencing guideline range of 110 to 137

months. At sentencing, the only adjustment that

Brazinskas challenged was § 3B1.4, which calls for a twolevel increase in offense level for the use of a minor. The

court agreed with the government that this was proper; in

the end, it selected a sentence within the guideline range of

120 months in prison, along with three years’ supervised

release and $1,712 in restitution. Brazinskas now appeals.

II

Even in this post-Booker world, we continue to review the

district court’s interpretation of the guidelines, including

§ 3B1.4, de novo. See United States v. Ramsey, 237 F.3d

853, 855 (7th Cir. 2001). The district court’s underlying factfindings, which it makes as part of its computation of the

advisory guideline range, are reviewed only for clear error.

Once the district court has pronounced its sentence, we

review the final sentence for reasonableness, see United

States v. Booker, 543 U.S. 220, 261 (2005).

Section 3B1.3 of the U.S. Sentencing Guidelines requires

a two-level increase in offense level where 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.” The application notes to the guideline explain that the phrase “used or

attempted to use” includes actions like “directing, com-
4 No. 05-4181

manding, encouraging, intimidating, counseling, training,

procuring, recruiting, or soliciting.” U.S.S.G. § 3B1.4 cmt.

n.1.

In Ramsey, we interpreted the word “use” in this guideline broadly to include those situations in which a defendant’s “affirmative actions involved minors in his criminal activities,” such as where a minor is a partner in a

criminal offense or when a minor’s role is subordinate to

that of the defendant. 237 F.3d at 859. We also indicated

that the defendant must know that the minor was participating in the crime: “a defendant who was not aware that

the minor was participating, and who had no contact with

the minor, probably would not be found to have used the

minor.” Id. at 860.

The district court’s finding that Brazinskas knew that

Guevara was involved with the crime was not clearly

erroneous. The court acknowledged that Brazinskas was not

the mastermind of the robbery plan, but that the group as

a whole “discussed that [the minor] would go with them,

and it’s obvious that [the minor] was in the car.” The court

also noted that Brazinskas knew that the group stood a

better chance of success if the getaway car contained both

a male and a female. Eviston admitted as much, when he

stated that Guevara “knew what was going on, and she was

with [Eviston] because [they] thought that if a guy and girl

were together, it would look good as [they] drove away.”

After Brazinskas left the bank, Guevara helped him to

climb into the trunk, and after the dye pack exploded, she

helped Brazinskas dispose of the bag. Later, she assisted

while the robbers counted the money.

This is ample evidence to support the enhancement. See,

e.g., United States v. Hodges, 315 F.3d 794, 802 (7th Cir.

2003) (fact that defendant “took possession of [the stolen

guns] with [the minor’s] assistance” was enough for § 3B1.4

enhancement to apply); United States v. Benjamin, 116 F.3d
No. 05-4181 5

1204, 1206 (7th Cir. 1997) (evidence establishing that minor

accompanied defendant to facilitate drug deal, told the

buyer where to meet, and listened to parties discuss the

terms of sale sufficiently proved that minor was a “partner”

for purposes of § 3B1.4). For the record, we add that there

is no support in this record for the proposition that

Brazinskas was a minor actor in the overall scheme. He was

the one who walked into the bank with a BB gun, gathered

the money, and left with it. We thus reject his argument

that his role was so small and incidental that he could not

have been among those who “used” Guevara.

Brazinskas also argues that the enhancement under

§ 3B1.4 does not apply, as a matter of law, unless the

defendant knew that his criminal activity involved the use

of a minor. Relying on dicta in United States v. Ceballos,

302 F.3d 679 (7th Cir. 2002), the district court concluded

that there was no such requirement in § 3B1.4. Instead, it

is necessary only that the defendant know that the person is being used, as we noted earlier.

In Ceballos, we observed that the district court’s interpretation of § 3B1.4 in that case “requires a finding that the

defendant had actual knowledge that the person he used to

commit the offense was a minor, and two other courts have

held that § 3B1.4 does not require such actual knowledge.”

302 F.3d at 697 (citing United States v. Gonzalez, 262 F.3d

867, 870 (9th Cir. 2001); United States v. McClain, 252 F.3d

1279, 1286 (11th Cir. 2001)). In Gonzalez, the Ninth Circuit

“decline[d] [the defendant’s] invitation to read a scienter

requirement into section 3B1.4 because the plain language

of the guideline does not require that a defendant have

knowledge that the individual is under eighteen years of

age for the enhancement to apply.” 262 F.3d at 870. The

Eleventh Circuit took the same approach, noting that a

scienter element would frustrate the purpose of § 3B1.4,

which is to protect minors from being used to commit

crimes. 252 F.3d at 1286. To the same effect, in United
6 No. 05-4181

States v. Lewis, 386 F.3d 475 (2d Cir. 2004), the court held

that “§ 3B1.4 does not require scienter in order to apply the

enhancement, that is, it is not necessary for the government

to show that a defendant had actual knowledge that the

person undertaking criminal activity was a minor.” Id. at

479. See also United States v. Thornton, 306 F.3d 1355,

1358-60 (3d Cir. 2002).

The position of these courts is consistent with the one

we took with respect to the statute making it unlawful for

a person eighteen years or older knowingly and intentionally to use or recruit a minor in connection with a drug

offense. See United States v. Smith, 223 F.3d 554 (7th Cir.

2000), construing 21 U.S.C. § 861(a)(1). In Smith, we held

that the government “does not have to prove that the

defendant . . . knew that the person was under the age of

18.” 223 F.3d at 566. Like the Eleventh Circuit, we concluded that a scienter requirement would “merely encourage[ ] leaders of organizations . . . to blind themselves to the

ages of the youths with whom they deal” and frustrate the

legislative purpose to protect juveniles. United States v.

Frazier, 213 F.3d 409, 419 (7th Cir. 2000). The same

rationale applies with equal force here. We therefore

join our sister circuits in holding that there is no scienter

requirement in § 3B1.4.

The judgment of the district court is AFFIRMED.
No. 05-4181 7

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-15-06