Unpublished Disposition, 928 F.2d 409 (9th Cir. 1990)

MEMORANDUM^** 

Defendant-appellant Wayne Lewis Tobin appeals his sentence for armed robbery under 18 U.S.C. § 2113(a), (d) on the grounds it violates the ex post facto clause of the United States Constitution. He contends that the district court erred in finding that a toy gun was a dangerous weapon, for purposes of sentence enhancement under the Sentencing Guidelines, for offenses committed prior to November 1, 1989.

We affirm the district court's sentence.

STANDARD OF REVIEW

This court reviews de novo the district court's construction and interpretation of the Guidelines. United States v. Carvajal, 905 F.2d 1292, 1295 (9th Cir. 1990).

DISCUSSION

Tobin pled guilty to two counts of armed robbery committed in October of 1989. On April 11, 1990, the district court sentenced Tobin to 63 months of imprisonment based on a three-level enhancement of his offense level for use of a dangerous weapon. U.S.S.G. Sec. 2B3.1(b) (2) (C). Tobin contends that the district court was wrong to enhance his sentence because he used a toy gun during the robbery and, at the time of his offenses, the Sentencing Guidelines' definition of a dangerous weapon specifically excluded toy guns.

At the time of Tobin's offenses, the Guidelines instructed the courts to enhance a robbery offense by three levels "if a firearm, or other dangerous weapon was brandished, displayed, or possessed...." U.S.S.G. Sec. 2B3.1(b) (2) (C). The Guidelines Commentary defined "dangerous weapon" as "an instrument capable of inflicting death or serious bodily injury." U.S.S.G. Sec. 1B1.1, Application Note 1(d) (1989). On November 1, 1989, the Sentencing Commission amended its "dangerous weapon" definition by adding the following sentence, "Where an object that appeared to be a dangerous weapon was brandished, displayed, or possessed, treat the object as a dangerous weapon." U.S.S.G. Sec. 1B1.1, Application Note 1(d) (1991).

The Sentencing Commission's comments accompanying the amendment explain that the change was simply to clarify the previous Application Note. U.S.S.G.App.C, p 71. However, Tobin contends that the amendment made a substantive change in the law and, therefore, may not be applied to his offense without violating the Constitution's ex post facto clause. U.S. Const., art. I, Sec. 9, cl. 3. To support his position, Tobin relies on Questions Most Frequently Asked About the Sentencing Guidelines, a nonbinding publication of the United States Sentencing Commission. Prior to the 1989 amendments, this publication stated that toy guns were not within the Guidelines' definition of dangerous weapons. Questions Most Frequently Asked About the Sentencing Guidelines, Vols. I & II (Nov. 30, 1988).

Tobin's assertion fails, however, because this court had previously interpreted "dangerous weapon," for purposes of the Guidelines, to include toy guns. In United States v. Smith, 905 F.2d 1296 (9th Cir. 1990), we held that a "dangerous weapon" for purposes of the Guidelines could be anything which may create fear or incite violence. Id. at 1300. In a footnote, the Smith court rejected language in the Questions Most Frequently Asked publication that stated a toy gun was not a dangerous weapons under the Guidelines. Id. at n. 3. We concluded that such a rule would run counter to this court's case law. Id. See, also, United States v. Boyd, No. 90-30110, slip op. (9th Cir. Jan. 31, 1990) (road flare is a dangerous weapon for purposes of the Guidelines sentence for a 1988 armed bank robbery). Therefore, no substantive change in the law of the Ninth Circuit was made as a result of the November 1, 1989 amendment.

Because we hold that a toy gun is a dangerous weapon, it is irrelevant whether the gun used by Tobin was real or not. Two eyewitnesses (bank tellers) testified that they observed what appeared to be a gun brandished by the defendant. The district court properly applied the Sentencing Guidelines to calculate the defendant's sentence. The sentence is AFFIRMED.