*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-10059

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PATRICIA DURA,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Northern District of Texas

(4:94-CR-74-Y)

 

November 24, 1995

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Patricia Dura appeals the sentence imposed pursuant to her

conviction on one count of bank robbery in violation of 18 U.S.C.

§ 2113. We have jurisdiction, 28 U.S.C. § 1291, and we now

affirm.

I.
2

On February 22, 1994, Dura and two other women, Sharon

Denise Curtis and Emma Cooley, robbed the First Interstate Bank

in Fort Worth, Texas. Posing as a customer seeking to open an

account at the bank, Curtis "cased" the bank while Cooley and

Dura waited outside. After Curtis informed Cooley and Dura that

there were no police inside the bank, Cooley and Duru entered the

bank and Cooley handed a note to a teller. The note read: "This

is no joke, make one wrong move and I will blow your fucking head

off. EMPTY YOUR DRAWER." Cooley held open the coat as if to

indicate that she was carrying a weapon. After the teller filled

Cooley's purse with cash, Cooley and Duru fled from the bank and

joined Curtis in the getaway car.

Prior to the First Interstate robbery, Dura had also robbed

the Central Bank and Trust in Kennedale, Texas on January 10,

1994. In that robbery, Cooley handed a note to the teller

threatening to shoot the teller. At the same time, Duru opened

her jacket and revealed what appeared to be the grip of a

handgun. Subsequent investigation by the F.B.I. disclosed that

neither Cooley nor Duru possessed a handgun during either

robbery; however, Cooley and Curtis later acknowledged that Duru

carried a BB pistol during these robberies.

On August 16, 1994, Duru, along with Cooley and Curtis, was

indicted on one count of bank robbery. On October 16, 1994, Duru

pled guilty and signed a Factual Resume stipulating to the facts

surrounding both robberies. In preparing the pre-sentence

investigation report, the U.S. Probation Office proposed to add
3

to the base offense level of 22 a three-level enhancement for

possession of a dangerous weapon during the commission of the

crime and a two-level enhancement for multiple offenses. On

January 3, 1995, the district court adopted the probation

office's recommendations and sentenced Duru to 51 months

imprisonment, the minimum guideline sentence. Duru timely

appealed.

II.

Duru first challenges her sentence on the ground that her

co-defendants received sentences less severe than her own. In

United States v. McKinney, 53 F.3d 664, 678 (5th Cir. 1995), we

held that a criminal defendant "cannot challenge his sentence

based solely on the lesser sentence given to his co-defendants." 

We see no reason to depart from that rule in this case.

Duru next contends that the three-level enhancement for the

possession of the BB gun was inappropriate since a BB gun is not

a dangerous weapon and, even if it is, Duru did not brandish it

during the robbery. We reject this contention. The Sentencing

Guidelines expressly provide that a BB gun is a "dangerous

weapon." U.S.S.G. § 1B1.1 application note 1(e). In addition,

the Guidelines provide for the three-level enhancement where a

"dangerous weapon was brandished, displayed, or possessed" during

the commission of the robbery. U.S.S.G. § 2B3.1(b)(2)(E)

(emphasis added). Cooley and Curtis both stated that Duru

possessed a BB gun during the First Interstate robbery, and Duru

never offered evidence that she did not.
4

Lastly, Duru argues that the district court erred in

considering the Central Bank robbery as a "multiple offense" for

purposes of the two-level enhancement under § 3D1.4 since the

plea agreement provided that no further criminal charges would be

brought against Duru for conduct described in the Factual Resume,

which included that Central Bank robbery. We disagree. The

Guidelines expressly provide that "[a] plea agreement . . .

containing a stipulation that specifically establishes the

commission of additional offense(s) shall be treated as if the

defendant had been convicted of additional count(s) charging

those offense(s)." U.S.S.G. § 1B1.2(c). Duru stipulated to her

participation in the Central Bank robbery in the Factual Resume,

and the plea agreement expressly provides that the facts set

forth in the Factual Resume "may be taken into consideration by

the Court in determining what sentence to impose."

AFFIRMED.