United States of America, Appellee, v. Lowell David Gray, Appellant, 895 F.2d 1225 (8th Cir. 1990)

Lowell David Gray pleaded guilty to unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). The sole issue on appeal is whether the district court¹  correctly found that an unloaded BB gun was a dangerous weapon warranting a three-point increase in the offense level under Sentencing Guideline Sec. 2B3.1. We affirm.

The facts are not disputed. On December 9, 1988, Gray and an accomplice robbed a federally insured bank in St. Louis, Missouri. Both men were armed only with pellet guns. As he fled, Gray threw down his weapon, later found to be an unloaded Power-line 12,000 BB gun (Daisy Rogers AR U.S.A.). The criminal complaint charged Gray with armed bank robbery under 18 U.S.C. § 2113(a) and (d). The grand jury indicted Gray for unarmed bank robbery, to which Gray pleaded guilty.

At the sentencing hearing, Gray argued that an unloaded BB gun was not a dangerous weapon within the meaning of Guideline Sec. 2B3.1(b) (2) (C) which authorizes an upward adjustment of the offense level by three points if a dangerous weapon was brandished. The district court rejected this argument, finding no distinction between loaded and unloaded weapons. Based on the PSI report, the district court found that the base offense level was 20 and that Gray was in criminal history category I. The court deducted two points for acceptance of responsibility and added the three points for use of a dangerous weapon. The final level of 21 yielded a sentencing range of 37-46 months; the court sentenced Gray to 38 months.

The application notes to Guideline Sec. 2B3.1(b) (2) (C) refer to Sec. 1B1.1 for the definition of "dangerous weapon." Guideline Sec. 1B1.1 application note 1(e) specifically defines BB guns as dangerous weapons. Application note 1(d) stated that " [w]here an object that appeared to be a dangerous weapon was brandished, displayed, or possessed, treat the object as a dangerous weapon." This language is repeated in application note 2 of Guideline Sec. 2B3.1(b) (2) (C).

The Supreme Court has held that a gun is a "dangerous weapon" within the meaning of 18 U.S.C. § 2113(d), regardless of whether it is loaded. McLaughlin v. United States, 476 U.S. 16, 17-18, 106 S. Ct. 1677, 1678, 90 L. Ed. 2d 15 (1986). The Second Circuit has applied McLaughlin to hold that an unloaded pellet gun was a dangerous weapon for purposes of Guideline Sec. 2B3.1. United States v. Laughy, 886 F.2d 28, 30 (2d Cir. 1989) (per curiam). McLaughlin is controlling and Laughy is persuasive as to its specific application to this case.

Gray argues that McLaughlin is distinguishable because the guidelines focus on the actual conduct of the defendant rather than the degree of danger perceived by others. The application notes, however, apply exactly to the facts in this case and sustain the sentence imposed. Gray also relies on the fact that "Questions Most Frequently Asked About the Sentencing Guidelines," Volume 1, United States Sentencing Commission, 1988, indicates that the firearm enhancement does not apply if the defendant uses a toy gun; whereas a toy gun can be a "dangerous weapon" for purposes of 18 U.S.C. § 2113(d). Id. at 12. A toy gun was not involved in this case but an unloaded pellet gun, which is a dangerous weapon under the guideline application notes of McLaughlin.

We affirm.