Unpublished Disposition, 908 F.2d 978 (9th Cir. 1990)

MEMORANDUM^* 

Miller pled guilty to unarmed bank robbery. During the robbery Miller pointed an unloaded starter pistol at a teller. A starter pistol is capable of making a loud noise, but not of firing a projectile. The district court added three points to Miller's base offense level because he determined the starter pistol Miller brandished is a dangerous weapon under United States Sentencing Guidelines (U.S.S.G.) Secs. 1B1.1, comment. (n. 1(d)) and 2B3.1(b) (2) (C) (Oct. 1987). The three points increased Miller's sentencing range from 30-37 months to 41-51 months; he was sentenced to 51 months. Miller appeals and we affirm.

United States v. Smith, No. 89-50321, slip op. 6051, 6057-59 (9th Cir. June 12, 1990) involving "either a revolver ... or a revolver with no pin ... or a pellet pistol," id. at 6057 (citation omitted), controls this appeal:

The display of even an inoperable or unloaded gun instills fear in the average citizen and creates the possibility of immediate, violent response. An inoperable gun can also cause harm when used as a bludgeon. In recognition of these facts, the new Commentary to the Guidelines makes it explicit that " [w]here an object that appeared to be a dangerous weapon was brandished, displayed or possessed, treat the object as a dangerous weapon."

Id. at 6058-59 (citations omitted). For these same reasons, the district court did not err in adding three points to Miller's base offense level for brandishing a dangerous weapon.

AFFIRMED.